US Department of Justice was a participant or observer in the following events:

The Justice Department demands that it be allowed to review evidence obtained by the Electronic Frontier Foundation (EFF) from retired AT&T technician Mark Klein (see February 23-28, 2006). The EFF is preparing to submit the evidence under regular court seal to presiding Judge Vaughn Walker. Neither the Justice Department nor any other government agency is a named defendant in the EFF’s lawsuit against AT&T for its allegedly illegal behavior in working with the National Security Agency (NSA) to conduct warrantless surveillance against American citizens (see January 31, 2006). Even so, lawyers from the Justice Department say they want to see if Klein’s documentation contains classified information (it does not—see Late 2003), and if so, they intend to place Klein’s documentation into a “sensitive compartmented information facility,” which would mean it would not be kept at the courthouse but in the possession of government agents at a secure location. Such classification would make the legal proceedings more difficult for both Judge Walker and the EFF lawyers. However, the request piques the interest of the national media, and reporters begin “flooding” Klein and the EFF with requests for information and interviews. [Klein, 2009, pp. 65-66] Ironically, two news outlets, the Los Angeles Times and New York Times, have all but shunned Klein before now (see February 11, 2006 and After and Mid-February - Late March, 2006). On April 4, after perusing the documents, the government lawyers return them to Walker with approval from senior Justice Department lawyer Anthony J. Coppolino to file them under ordinary court seal. Klein will later write that Coppolino’s acquiescence will undermine the government’s later efforts to have the lawsuit dismissed under the “state secrets” provision (see Late May, 2006). [Klein, 2009, pp. 66] In June 2007, the online technical news site Wired News will publish the documents after they are released by the Electronic Frontier Foundation (see June 13, 2007) under the headline “AT&T ‘Spy Room’ Documents Unsealed; You’ve Already Seen Them.” Wired previously published them in May 2006 (see May 17, 2006), and PBS’s Frontline also published them as part of a televised documentary on Klein and the eavesdropping program. [Wired News, 6/13/2007]

The Lewis Libby defense team accuses special counsel Patrick Fitzgerald of changing and narrowing his original broadly worded investigative mandate (see December 30, 2003) in order to avoid having his case against Libby dismissed. In a court filing, Libby’s team accuses Fitzgerald and the former Justice Department official who appointed him, James Comey, of rewriting Fitzgerald’s original mandate. According to Libby’s lawyers, the original mandate of what they call “unsupervised and undirected power” requires that Fitzgerald be relieved of his duties and all the results of his investigation, including any evidence of wrongdoing, be voided. “The government attempts to salvage the appointment by submitting two affidavits recently prepared by Mr. Comey and Mr. Fitzgerald, claiming that their previously undisclosed, subjective understanding of the appointment was narrower,” Libby’s lawyers write, apparently referring to Fitzgerald’s recent assertion that the Libby prosecution is about perjury and obstruction of justice, not about the leak of former CIA official Valerie Plame Wilson’s covert agency status. “Mr. Comey now asserts that ‘it was my intention that the special counsel would follow substantive department policies’ in exercising that authority,” the lawyers note, not to follow what they say was Fitzgerald’s unrestricted investigation that, they allege, violated Justice Department policies. The lawyers also reiterate their claim that Fitzgerald’s appointment is unconstitutional because he should have been appointed by Congress, not the Justice Department (see February 23, 2006). [US District Court for the District of Columbia, 3/31/2006 ; Associated Press, 4/1/2006; Associated Press, 4/1/2006] Judge Reggie Walton will refuse to dismiss the charges (see April 26, 2006).

Justice Department prosecutors defend their designation of Ali Saleh Kahlah al-Marri, a Qatari citizen alleged to have been part of the 9/11 planning (see December 12, 2001), as an “enemy combatant.” The government’s “enemy combatant” allegations against al-Marri are contained within documents signed by Jeffrey Rapp, the director of the Pentagon’s Joint Intelligence Task for Combating Terrorism (known as the Rapp Declarations) (see April 5, 2006). The unclassified portion of the allegations states almost verbatim the same charges against al-Marri that were dropped in 2003—setting up fake bank accounts, stealing credit cards, and keeping pro-terrorist literature and photos on his computer (see June 23, 2003). The government says it has more evidence tying al-Marri to the 9/11 plot, but that evidence remains classified, so neither al-Marri nor his lawyers can see it. While al-Marri’s lawyers protest that the evidence is “triple hearsay” and inadmissible in court, the judge rules otherwise. Slate’s Emily Bazelon will report, “The declassified allegations aren’t revelatory.” The material attempts to link al-Marri to the 9/11 plotters through Khalid Shaikh Mohammed, the lead plotter for the attacks. It still is not clear in the newly released evidence who the sources of the information are, but it seems that much of the evidence against al-Marri comes from interrogation sessions held with Mohammed himself. Bazelon observes, “[I]t’s also a safe bet that evidence against al-Marri was obtained through torture.” Such evidence is legally inadmissable as well. Mohammed and other witnesses subjected to illegal interrogation methods can “certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture,” says a government official. [Slate, 4/20/2006]

Court documents filed by the Justice Department allege that accused al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri, a Qatari national, was chosen to come to the US by 9/11 mastermind Khalid Shaikh Mohammed because, in part, al-Marri has a wife and children, and therefore would arouse less suspicion. Al-Marri was taken into federal custody as a material witness to the attacks (see December 12, 2001) and later designated as a “enemy combatant” (see June 23, 2003). The Justice Department is battling a lawsuit filed by al-Marri’s lawyers challenging his detention. According to the Justice Department, al-Marri was told to arrive in the US before the attacks, and to head to Pakistan if he didn’t get inside the US in time. Al-Marri, his wife, and their five children arrived in the US on September 10, 2001, where he began taking courses at Bradley University in Peoria, Illinois. The new details come from declassified portions of a sworn statement that the government is using to justify al-Marri’s indefinite detention. The Bush administration has insisted on limiting the information available to detainees and to the public, but was pressured into releasing the al-Marri information after a federal magistrate told government lawyers in February that “the deck is stacked pretty good in favor of the government to start with,” and thusly he wouldn’t consider evidence about al-Marri that al-Marri and his lawyers were not permitted to view for themselves. The magistrate, Judge Robert Carr, is expected to soon recommend whether al-Marri should continue to be held as an enemy combatant. According to the declassified summary, al-Marri traveled to Dubai in August 2001 and was given somewhere between $10,000 and $13,000 plus $3,000 more for a laptop computer. Al-Marri was allegedly given the money by Mustafa Ahmed al-Hawsawi, an al-Qaeda paymaster and one of Mohammed’s lieutenants who also allegedly helped some of the 9/11 hijackers (see Early-Late June, 2001). When al-Marri was taken into custody, the computer was found to contain files on the manufacture of hydrogen cyanide as well as over a thousand credit card numbers. The documents say that Mohammed communicated about al-Marri’s activities in the US through his brother, Jaralla Saleh Mohamed Kahla al-Marri, currently being held at Guantanamo Bay. Jonathan Hafetz, one of Ali al-Marri’s lawyers, says that not only should al-Marri “been given this information long ago,” but because the government has not offered any evidence to support the summary, the document is little more than hearsay. Carr told government lawyers to either stop using classified information or declassify it so that al-Marri could see it and respond to it. “You need to make your choice, because this deals with a man’s freedom,” Carr tells the Justice Department lawyers. “He has been removed from the battlefield, so to speak, for many years.” [Chicago Tribune, 4/6/2006]

The New York Times does a more in-depth report on the allegations advanced by former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). The Times published a far briefer report five days earlier (see April 7, 2006). The article provides a brief synopsis of Klein’s allegations—that AT&T worked with the National Security Agency (NSA) to illegally monitor and record millions of Americans’ telephone and Internet communications and thus illegally invaded its customers’ privacy. It also notes, as did the first article, that Klein had provided some of his documentation “to reporters,” though neither article admits that the Times received the documents months beforehand (see Mid-February - Late March, 2006). The new information in the article is the conclusion of “four independent telecommunications and computer security experts” who examined Klein’s documents “at the request of The New York Times.” According to the four experts, the documents “describe equipment capable of monitoring a large quantity of email messages, Internet phone calls, and other Internet traffic. The equipment… was able to select messages that could be identified by keywords, Internet or email addresses, or country of origin and divert copies to another location for further analysis.” All four experts agreed that the documents proved “AT&T had an agreement with the federal government to systematically gather information flowing on the Internet through the company’s network. The gathering of such information, known as data mining, involves the use of sophisticated computer programs to detect patterns or glean useful intelligence from masses of information.” Brian Reid, the director of engineering at the Internet Systems Consortium, says of the AT&T/NSA project: “This took expert planning and hundreds of millions of dollars to build. This is the correct way to do high volume Internet snooping.” An expert who refuses to be named says the documents are “consistent” with Bush administration claims that the NSA only monitored foreign communications and communications between foreign and US locations, in part because of the location of the monitoring sites. (An expert witness, former AT&T and FCC employee J. Scott Marcus, has given testimony for EFF that flatly contradicts this expert’s assertions—see March 29, 2006). The article notes the Justice Department’s objections to Klein’s documents being filed with the court in the EFF lawsuit, and notes that the department withdrew its objections (see Late March - April 4, 2006). It also notes AT&T’s request for the court to order the EFF to return the documents because they are, the firm claimed, “proprietary” (see April 6-8, 2006). AT&T spokesman Walt Sharp says of Klein and the EFF lawsuit: “AT&T does follow all laws with respect to assistance offered to government agencies. However, we are not in a position to comment on matters of national security.” NSA spokesman Don Weber makes a similar statement: “It would be irresponsible of us to discuss actual or alleged operational issues as it would give those wishing to do harm to the United States the ability to adjust and potentially inflict harm.” [New York Times, 4/12/2006] Klein will write of the story, “Finally it was out there in a major newspaper, though I noticed that the New York Times did not show any images of the actual documents, and never called me back for an in-depth followup story.” [Klein, 2009, pp. 71]

A study conducted by the American Medical Association (AMA) finds that health insurance companies are becoming near-monopolies. Ninety-five percent of the 294 HMO/PPO metropolitan markets surveyed have a Herfindahl-Hirschman Index (HHI) above 1,800. The HHI is used to determine whether a company’s control of the market warrants antitrust concern. A market with a rating of 1,800 is considered by the Department of Justice to be “highly concentrated.” Sixty-five percent of the companies surveyed have a rating over 3,000. The concentration is apparently the product of a period of intense consolidation within the industry. According to the AMA, there were more than 400 mergers during the preceding ten years. [American Medical Association, 2006 ; Associated Press, 4/18/2006] “Patients do not appear to be benefiting from the consolidation of health insurance markets,” says AMA board member Dr. J. James Rohack. “Health insurers are posting historically high profit margins, yet patient health insurance premiums continue to rise without an expansion of benefits.” [Consumer Affairs, 4/18/2006] The AMA has asked the Department of Justice to take up antitrust action. But the organization says that in spite of the extremely high market concentration, regulators seem uninterested. [Associated Press, 4/18/2006]

The CIA announces that it has fired one of its officers, Mary McCarthy, who, it claims, “knowingly and willfully shared classified intelligence” with a newspaper reporter. McCarthy is alleged to have leaked information about the CIA’s network of secret overseas prisons to Washington Post reporter Dana Priest. The Post recently published a Pulitzer Prize-winning series of stories on the secret prison network; Priest was one of the main reporters for that series. McCarthy worked at the CIA’s Office of the Inspector General, which was investigating allegations that the CIA was torturing detainees at Iraqi prisons. The CIA claims McCarthy has admitted to the leaks, though it will not acknowledge that she was one of Priest’s sources for the prison stories. But McCarthy’s attorney, Ty Cobb, says that his client “emphatically denies she leaked any classified information and the facts would demonstrate that she would not even have access to any of the information attributed to her leaking to anyone.” She is “devastated,” Cobb says, that her long career will “forever be linked with misinformation about the reasons for her termination,” and that her firing was “certainly not for the reasons attributed to the agency.” Cobb notes that McCarthy is only 10 days short of retirement, and says, “Her hope had been to leave with her dignity and reputation intact, which obviously did not happen.” McCarthy has planned for some time to leave the agency and become a public interest lawyer. Her retirement process began well before the CIA began investigating the Post leaks. [New York Daily News, 4/22/2006; National Journal, 4/25/2006; Washington Post, 4/25/2006]Aggressive Internal Probe - The CIA has conducted an aggressive internal investigation, administering polygraph tests to McCarthy and numerous other officials. “This was a very aggressive internal investigation,” says a former CIA officer. “[CIA Director Porter] Goss was determined to find the source of the secret jails story.” [New York Times, 4/21/2006] The agency has not asked the Justice Department to open a formal probe into the allegations against McCarthy, and resultingly, few expect that criminal charges will be filed against her or any others who may be accused of leaking information. [Washington Post, 4/25/2006] The Justice Department has already opened a probe of the leaks surrounding the Post stories, but no word of the results of that probe has been revealed. No reporters have been interviewed about the leaks: Post spokesman Eric Grant says, “No Post reporter has been subpoenaed or talked to investigators in connection with this matter.” Post executive editor Leonard Downie Jr. says that he cannot comment on the firing, but “[a]s a general principle, obviously I am opposed to criminalizing the dissemination of government information to the press.” [New York Times, 4/21/2006]McCarthy Often Spoke to Reporters - A former CIA official tells a reporter that part of McCarthy’s job was to talk to the press in authorized interviews. “It is not uncommon for an officer, when they are designated to talk to the press, to let something slip, or not report every contact.” Former Deputy CIA Director Richard Kerr says of McCarthy: “She was a very qualified analyst in a variety of jobs. She had strong views sometimes, but I don’t know anyone who would describe her as a zealot or ideologue.” CIA Officials Often 'Ignored' When Attempting to Bring Up Issues - Kerr adds that if McCarthy did leak classified information to the press, she behaved wrongly and should be held accountable. “If she believed there was something morally wrong or illegal going on, there were mechanisms within the system to go up the line, or complain,” he says. “The other possibility for her or anyone else is to quit and speak once you are outside.” Former CIA analyst and State Department counterterrorism official Larry Johnson disagrees, saying: “During this administration, there have been any number of CIA officers who have brought up issues through channels internally. There have been intelligence officers who have brought up things within their own agencies, and even spoken to Congressional intelligence committees or presidential commissions. But they have found themselves completely ignored.” [National Journal, 4/25/2006] A former intelligence official who knows McCarthy says: “Firing someone who was days away from retirement is the least serious action they could have taken. That’s certainly enough to frighten those who remain in the agency.” [Washington Post, 4/25/2006]Senator Praises Firing - Senator Pat Roberts (R-KS), the chairman of the Senate Intelligence Committee, praises the CIA’s action. However, he is allegedly guilty of a far worse intelligence leak (see April 21, 2006). Critics Claim Partisan Basis for Leaked Information - Some supporters of the Bush administration will claim that McCarthy’s leaks were politically motivated, and will point to the fact that in 2004, McCarthy contributed $2,000 to the presidential campaign of Democrat John Kerry (D-MA). [Washington Post, 4/25/2006] Columnist Melanie Morgan will accuse McCarthy of having “leftist ties,” and calls her a “revolting… liberal Democrat [sic] activist” who colluded with Priest, another “leftist,” to publish information that would “undermine America’s fight against terrorism.” She will also accuse McCarthy and Priest of working to help defeat Senator Curt Weldon (R-PA) in his 2006 re-election bid, and of having “suspicious” ties to Sandy Berger, the Clinton administration’s national security adviser, and former counterterrorism adviser Richard Clarke. She concludes: “The Clintonites are so desperate to regain power that they are willing to sell out our national security to do it. And the reporters who serve as agents for this effort are rewarded for executing their role in the effort.… And the people who are hurting America are being rewarded.” [WorldNetDaily, 4/28/2006]

The Justice Department announces that it is invoking the “state secrets” clause to prevent a lawsuit by the Electronic Frontier Foundation (EFF) against AT&T from going forward (see March 9, 1953 and January 31, 2006). The EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program. The government alleges that the lawsuit would reveal “state secrets” critical to “national security” if it continues. The Justice Department makes its initial filing in mid-May (see May 13, 2006). [US District Court, Northern District of California, 4/28/2006 ; Klein, 2009, pp. 71]

President Bush personally intervenes in a Justice Department attempt to investigate the NSA’s domestic surveillance program (see May 9, 2006), refusing to grant the Justice Department’s investigators routine security clearances so they can proceed with the investigation. Bush’s intervention is later admitted by Attorney General Alberto Gonzales in testimony before the Senate Judiciary Committee on July 18, 2006. Bush’s action to block the granting of clearances to the Justice Department’s Office of Professional Responsibility (OPR) is unprecedented, and astonishes many legal experts. As a result of his decision, the OPR has no choice but to drop the investigation (see May 9, 2006). The OPR investigation would not have determined whether the surveillance program was illegal or unconstitutional; rather, the office would have investigated “allegations of misconduct involving department attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice,” according to the office’s policies and procedures. [Associated Press, 5/11/2006; USA Today, 7/18/2006; Washington Post, 7/19/2006; National Journal, 3/15/2007]Stopping Gonzales from Being Investigated - The press later learns that had the probe gone forward, Gonzales himself would have been a prime target of inquiry. It is unclear if Bush knows the OPR investigation would have focused on Gonzales. The probe would have focused on Gonzales’s role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general. Before Bush shuts down the probe, OPR investigators were preparing to question two crucial witnesses—Jack Goldsmith, the former chief of the Justice Department’s Office of Legal Counsel, and James A. Baker, the counsel for the department’s Office of Intelligence Policy and Review. Both Goldsmith and Baker had raised questions about the propriety and legality of numerous aspects of the wiretapping program. The OPR would have also examined documents detailing Gonzales’s participation in the program. [National Journal, 3/15/2007]OPR Chief Counsel Protests Decision - Upon Gonzales’s admission of Bush’s action, OPR chief counsel H. Marshall Jarrett responds: “Since its creation some 31 years ago, OPR has conducted many highly sensitive investigations involving executive branch programs and has obtained access to information classified at the highest levels. In all those years, OPR has never been prevented from initiating or pursuing an investigation.” Jarrett notes in other memos that clearances had previously been granted to lawyers and agents from the Justice Department and the FBI who were assigned to investigate the original leak of the NSA program’s existence to the media. He also writes that numerous other investigators and officials, including members of Congress and the members of a federal civil liberties board, had been granted access to or been briefed on the program. On March 21, he will write to Gonzales’s deputy, “In contrast, our repeated requests for access to classified information about the NSA program have not been granted.” Gonzales will defend the president’s decicion by saying, in a letter to Judiciary Committee Chairman Arlen Specter (R-PA), that Bush “decided that protecting the secrecy and security of the program requires that a strict limit be placed on the number of persons granted access to information about the program for non-operational reasons. Every additional security clearance that is granted for the [program] increases the risk that national security might be compromised.” In other words, granting the OPR investigators routine security clearances, as has been done countless times in the last three decades as well as in the instances noted by Jarrett, would have jeopardized national security, according to Gonzales’s reasoning. [Associated Press, 5/11/2006; USA Today, 7/18/2006; Washington Post, 7/19/2006] “It is very difficult to understand why OPR was not given clearance so they could conduct their investigation,” Specter will say. “Many other lawyers in the Department of Justice had clearance.” [Boston Globe, 7/19/2006]OPR Investigators Seeking Information Already in Justice Department's Possession - The questions surrounding the refusal to grant security clearances deepen when it is learned that the OPR investigators were only seeking information and documents relating to the NSA’s surveillance program that were already in the Justice Department’s possession, according to two senior government officials. The only classified information that OPR investigators were seeking was what had already been given to former Attorney General John Ashcroft, Gonzales, and other department attorneys in their original approval and advice on the program, the two senior government officials say. OPR’s request was limited to documents such as internal Justice Department communications and legal opinions, and didn’t extend to secrets that are the sole domain of other agencies. [National Journal, 5/29/2006]OPR No; Private Citizens Yes - Jarrett will also note in his March 21 letter that, while Bush refused security clearances to OPR investigators, five “private individuals” who serve on Bush’s “Privacy and Civil Liberties Oversight Board have been briefed on the NSA program and have been granted authorization to receive the clearances in question.” Private citizens, especially those who serve only part-time on governmental panels, have traditionally been considered higher security risks than full-time government employees, who can lose their jobs or even be prosecuted for leaking to the press. Jarrett says that in contrast to the private individuals on Bush’s advisory board, OPR’s “repeated requests for access to classified information about the NSA have not been granted. As a result, this office, which is charged with monitoring the integrity of the department’s attorneys and with ensuring that the highest standards of professional ethics are maintained, has been precluded from performing its duties.” Michael Shaheen, who headed the OPR from its inception until 1997, will say that his staff “never, ever was denied a clearance” and that OPR under his leadership had conducted numerous investigations involving the activities of various attorneys general. “No attorney general has ever said no to me,” Shaheen says. [National Journal, 7/18/2006]Inquiry Opened - The Justice Department’s inspector general, Glenn Fine, will open a preliminary inquiry into how the FBI has used the NSA’s surveillance data, which has often been obtained without judicial warrants and is considered by many legal experts to be illegal. Representative Maurice Hinchey (D-NY), who led the Congressional calls for an investigation of the NSA, says Bush’s decision is an example of “an administration that thinks it doesn’t have to follow the law.” [Washington Post, 7/19/2006] “We can’t have a president acting in a dictatorial fashion,” he says. [USA Today, 7/18/2006]'Abusing' Their Offices? - Bruce Fein, a Republican constitutional lawyer who served in Ronald Reagan’s Justice Department, compares Gonzales unfavorably to Elliot Richardson, who resigned in 1973 rather than obey then-President Nixon’s order to fire Watergate special prosecutor Archibald Cox. “If he was like Elliot Richardson, he’d say, ‘Mr. President, I quit,’” Fein observes. [Think Progress, 7/18/2006; Washington Post, 7/19/2006] In 2007, law professor and legal ethics expert Charles Wolfram will say that if Gonzales did not inform the president that he might be a target of the OPR investigation, then he ill-served Bush and abused “the discretion of his office” for his own benefit. However, Wolfram will continue, if Gonzales did inform Bush that the probe might harm Gonzales, then “both [men] are abusing the discretion of their offices.” [National Journal, 3/15/2007]Defending Bush's Decision - Bush officials dismiss the attempted investigation, and the criticisms by Fein, Hinchey, and others, as politically motivated. White House press secretary Tony Snow says the NSA wiretapping program is adequately supervised by internal oversight procedures, including periodic reviews by Gonzales. [Think Progress, 7/18/2006; Washington Post, 7/19/2006] “The Office of Professional Responsibility was not the proper venue for conducting that,” Snow says. He adds that Bush’s denial of the security clearances is warranted because “in the case of a highly classified program, you need to keep the number of people to it tight for reasons of national security, and that was what he did.” [National Journal, 3/15/2007]

A simulation of waterboarding arranged by ABC News. [Source: ABC News]According to an ABC News report in September 2007, CIA Director Michael Hayden bans the use of waterboarding some time in 2006, with the approval of the White House. It is not known when exactly the technique is banned that year, but presumably it takes place after Hayden becomes CIA director (see May 5, 2006) and in response to the Supreme Court decision mandating that terror suspects must be given treatment consistent with the Geneva Conventions (see July 12, 2006). Waterboarding is a harsh interrogation technique that simulates drowning and is usually referred to as torture. Allegedly, the CIA last used waterboarding in 2003 on Khalid Shaikh Mohammed and “It is believed that waterboarding was used on fewer than five ‘high-value’ terrorist subjects” (see May 2002-2003). John Sifton of Human Rights Watch later says the ban “a good thing, but the fact remains that the entire [CIA interrogation] program is illegal.” [ABC News, 9/14/2007] Over a year before Hayden’s decision, Justice Department official Daniel Levin had himself subjected to simulated waterboarding to help him determine if waterboarding was indeed torture (see Late 2004-Early 2005). Levin intended to issue a memo condemning the practice as beyond the bounds of the law, but was forced out of the Justice Department before he could make that ruling.

Maurice Hinchey. [Source: Washington Post]A Justice Department investigation into the National Security Agency’s warrantless wiretapping program ends before it begins, because the NSA will not grant Justice Department lawyers routine security clearances. The investigation had been opened in February 2006 (see February 2, 2006) when Representative Maurice Hinchey (D-NY) asked the Justice Department’s Office of Professional Responsibility (OPR) to investigate the NSA’s warrantless surveillance of US citizens (see After September 11, 2001). Without security clearances, investigators could not examine NSA lawyers’ role in the program. OPR counsel H. Marshall Jarrett writes in a letter to Hinchey: “We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program. Without these clearances, we cannot investigate this matter and therefore have closed our investigation.” Jarrett and his office have made routine requests for security clearances since January, to no avail. The OPR’s investigation would have focused strictly on whether Justice Department lawyers violated ethical rules, and would not have examined the entire NSA program. Hinchey says, “This administration thinks they can just violate any law they want, and they’ve created a culture of fear to try to get away with that.” [Associated Press, 5/11/2006] Hinchey writes to Jarrett, regarding the failure to grant clearances: “We are perplexed and cannot make sense of your denial of these security clearances. Our request did not ask OPR to give us the intricate details of the NSA program; we understand that such a request would not even be within OPR’s jurisdiction. There appear to be no reasonable grounds for blocking this investigation. Not only does your denial of their request for a security clearance not make sense, it is unprecedented.” Hinchey will try, and fail, to get a bill through the Republican-controlled House Judiciary Committee to force the White House, Justice Department, and Defense Department to turn over to Congress all documents related to the closure of the OPR probe. He will write in a letter to President Bush, “If the NSA program is justified and legal, as you yourself have indicated, then there is no reason to prevent this investigation from continuing.” [US House of Representatives, 7/18/2006] In June 2006, it will be revealed that Bush personally made the decision not to grant the OPR investigators security clearances (see Late April 2006).

The Justice Department files a brief with the US District Court of Northern California asking that the Electronic Frontier Foundation (EFF)‘s lawsuit against AT&T (see January 31, 2006) be dismissed on the grounds that it would breach “state secrets” vital to “national security.” The Justice Department publicly announced its intentions of asking that the lawsuit be dismissed on those grounds two weeks ago (see April 28, 2006). EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program. The lawsuit is Hepting, et al v. AT&T, often shortened in the media to Hepting v. AT&T. The government submits a number of secret documents to Judge Vaughn Walker as evidence, along with a heavily redacted document submitted for public perusal. Other documents include affidavits from the Director of National Intelligence, John Negroponte, and the head of the NSA, Lieutenant General Keith Alexander. Some observers believe that Walker, a conservative appointed to the bench by President George H.W. Bush, will quickly comply with the government’s request. However, as AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009), who is working with EFF on the lawsuit (see Early January 2006), will later write, Vaughn is independent-minded and possessed of a “strong libertarian bent,” and will not be so prone to do the government’s bidding as some believe. [Klein, 2009, pp. 72-73] Walker’s first hearing on the brief will be held four days later (see May 17, 2006).

Judge Vaughn Walker of the US District Court of Northern California holds a hearing on the government’s request to have the Electronic Frontier Foundation (EFF)‘s lawsuit against AT&T dismissed (see May 13, 2006). The Justice Department says the lawsuit must be dismissed on the grounds that it would breach “state secrets” vital to “national security” if allowed to go forward. EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program (see January 31, 2006). AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009), who is working with EFF on the lawsuit (see Early January 2006), attends the hearing along with a small phalanx of lawyers; a woman slips a piece of paper into his hand containing her name and the telephone number for CBS News’s 60 Minutes. The AT&T lawyers are furious at Klein because an online news site, Wired News, just published his 2005 memo containing evidence against AT&T that the firm wants suppressed (see May 17, 2006). Klein will later write that he has no knowledge of how Wired News received the document, though the AT&T lawyers believe he supplied it to Wired News, and he will say he is pleased at the publication. (Wired News will later explain why it chose to publish the document—see May 22, 2006.) In the hearing, Walker refuses to order Klein to return the documents to AT&T, noting that Klein is not a plaintiff in the case and therefore Walker lacks the judicial authority to make such an order. Walker advises AT&T if it wants the documents back, it will have to sue Klein for their return. EFF lawyer Cindy Cohn challenges the government’s claim that the lawsuit should be dismissed on “state secrets” grounds, arguing that “this can be litigated without reference to any state secrets.… The question is whether the information has been acquired by AT&T in order to give it to the government and whether it’s been divulged to the government and what the government does with that information afterward, which I think could implicate state secrets, is completely irrelevant, or not necessary for us to pursue this case.” The motion to dismiss is not decided in this hearing. [Klein, 2009, pp. 73-78]

Attorney General Alberto Gonzales says that the government has the right to prosecute journalists for publishing classified information. “There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility,” he says during an ABC News interview. “That’s a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected.” Asked if he is considering prosecuting the New York Times for revealing the Bush administration’s warrantless wiretapping program (see December 15, 2005), Gonzales says the Justice Department is trying to determine “the appropriate course of action in that particular case.” He continues: “I’m not going to talk about it specifically. We have an obligation to enforce the law and to prosecute those who engage in criminal activity.” Experts believe that Gonzales is probably referring to the 1917 Espionage Act, which prohibits government officials from passing classified information to anyone without proper clearance; those same experts say that the Espionage Act was never intended to apply to the press. Furthermore, journalists are protected from such prosecution by the First Amendment. Gonzales says that while the Bush administration respects the right of freedom of the press, “it can’t be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity.” [New York Times, 5/22/2006] Thirty years ago, then-White House chief of staff Dick Cheney recommended such prosecution against a journalist who revealed the existence of a Cold War-era submarine program (see May 25, 1975). In 2007, reporter and author Charlie Savage will write that in 1975, the attorney general had scuttled the idea. Now, the attorney general is embracing the idea. [Savage, 2007, pp. 175-176]

The Bush administration submits a legal brief arguing that the Electronic Frontier Foundation’s lawsuit against AT&T, alleging that firm cooperated with the NSA’s domestic surveillance program (see January 31, 2006), should be thrown out of court because of the government’s “state secrets” privilege (see March 9, 1953). Justice Department lawyers want Judge Vaughn Walker to examine classified documents that they say will convince him to dismiss the lawsuit. However, the government does not want the defense lawyers to see that material. “No aspect of this case can be litigated without disclosing state secrets,” the government argues. “The United States has not lightly invoked the state secrets privilege, and the weighty reasons for asserting the privilege are apparent from the classified material submitted in support of its assertion.” [CNET News, 5/26/2006]

George Terwilliger, a former deputy attorney general under George H. W. Bush, argues that the current Bush administration’s controversial data mining program (see Late 1999 and After September 11, 2001) is not illegal. Terwilliger tells the conservative National Review, “I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” meaning that the law calls for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.” Terwilliger’s argument echoes the arguments of the Bush Justice Department, which argues that the data mining program—part of the NSA’s “Stellar Wind” surveillance program (see Spring 2004 and December 15, 2005)—does not technically constitute “electronic surveillance” under the law. Both the Fourth Amendment and the Foreign Intelligence Surveillance Act, as interpreted by the courts, define such actions as “electronic surveillance,” according to a number of legal experts, including law professor Orin Kerr. And, Ars Technica reporter Julian Sanchez notes in 2009, “the Stored Communications Act explicitly makes it a crime to ‘knowingly divulge a record or other information pertaining to a subscriber to or customer of such service… to any governmental entity.’” Sanchez will call Terwilliger’s argument “very strange,” but will note that Terwilliger is the attorney for then-Attorney General Alberto Gonzales and “a prominent defender of the administration’s surveillance policies.” Sanchez will conclude that while the argument “might pass for clever in a high school debate round… [i]t would be deeply unsettling if it [passes] for anything more in the halls of power.” [National Review, 6/5/2006; Ars Technica, 12/16/2008]

In a follow-up hearing, Judge Vaughn Walker of the US District Court of Northern California hears arguments by AT&T and the Justice Department as to whether he should dismiss a lawsuit against AT&T by the Electronic Frontier Foundation (EFF—see January 31, 2006). The EFF argues that AT&T violated its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s allegedly illegal domestic wiretapping project. The government asserts that the lawsuit would jeopardize “state secrets” if permitted to go forward (see May 22, 2006). In today’s hearing, Justice Department lawyer Peter Keisler admits to Walker that the documents presented on behalf of the EFF by AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) and others are not classified. “None of the documents they (EFF) have submitted… implicate any privileged [classified] matters,” Keisler tells Walker. The judge says, “Including the Klein documents.” Keisler agrees, saying: “We have not asserted any privilege over the information that is in the Klein and Marcus (see March 29, 2006) documents.… Mr. Klein and Marcus never had access to any of the relevant classified information here, and with all respect to them, through no fault or failure of their own, they don’t know anything.” Klein will later write that Keisler’s admission is a crippling blow to the government’s assertion that the EFF documentation would compromise national security if made public or submitted in open court. [Klein, 2009, pp. 77]

Lawyers file court documents alleging that the National Security Agency (NSA) worked with AT&T to set up a domestic wiretapping site seven months before the 9/11 attacks. The papers are filed as part of a lawsuit, McMurray v. Verizon Communications, which cites as plaintiffs AT&T, Verizon, and BellSouth customers whose privacy was allegedly violated by the NSA warrantless wiretapping program (see May 12, 2006); it also alleges that the firms, along with the NSA and President Bush, violated the Telecommunications Act of 1934 and the US Constitution. AT&T, Verizon, and BellSouth have been accused of working with the NSA to set up domestic call monitoring sites (see October 2001). Evidence that the NSA set up domestic surveillance operations at least seven months before the 9/11 attacks is at the core of the lawsuit (see Spring 2001). The suit is similar to one filed against AT&T by the Electronic Frontier Foundation (EFF—see January 31, 2006) and other such lawsuits. A lawyer for the plaintiffs in McMurray, Carl Mayer, says: “The Bush administration asserted this [the warrantless wiretapping program] became necessary after 9/11. This undermines that assertion.” AT&T spokesman Dave Pacholczyk responds, “The US Department of Justice has stated that AT&T may neither confirm nor deny AT&T’s participation in the alleged NSA program because doing so would cause ‘exceptionally grave harm to national security’ and would violate both civil and criminal statutes.” Verizon has denied being asked by the NSA for its customer phone records, and has refused to confirm or deny “whether it has any relationship to the classified NSA program.” BellSouth spokesman Jeff Battcher says: “We never turned over any records to the NSA. We’ve been clear all along that they’ve never contacted us. Nobody in our company has ever had any contact with the NSA.” The NSA domestic wiretapping program is known as “Pioneer Groundbreaker,” a part of the larger “Project Groundbreaker” (see February 2001). According to Mayer and his fellow lawyer Bruce Afran, an unnamed former employee of AT&T provided them with information about NSA’s approach to AT&T. (That former employee will later be revealed as retired technician Mark Klein—see Late 2002, July 7, 2009, December 15-31, 2005, and April 6, 2006). The lawsuit is on a temporary hiatus while a judicial panel rules on a government request to assign all of the telecommunications lawsuits to a single judge. [Bloomberg, 6/30/2006]

Inspired in part by the American Bar Association’s upcoming task force report on President Bush’s use of signing statements to ignore the law (see July 23, 2006), Senate Judiciary Committee chairman Arlen Specter (R-PA) holds a hearing on signing statements. Specter asks the White House to send either Attorney General Alberto Gonzales or Steven Bradbury, the acting head of the Justice Department’s Office of Legal Counsel, to testify to the use of the statements. Instead, in what some observers feel is a calculated snub, the White House sends Michelle Boardman, a low-ranking Justice Department deputy. Boardman refuses to answer questions about the use of signing statements by Bush, and instead argues that Bush has shown respect to Congress by using signing statements to indicate his refusal to comply with legislation rather than vetoing entire bills. “Respect for the legislative branch is not shown through [making] a veto,” she tells the assembled committee members. “Respect for the legislative branch, when we have a well-crafted bill, the majority of which is constitutional, is shown when the president chooses to construe a particular statement in keeping with the Constitution, as opposed to defeating an entire bill that would serve the nation.” The president has the power and responsibility to ignore any portion of any law passed by Congress when he feels it conflicts with the Constitution, she says, even in cases “where the Supreme Court has yet to rule on an issue, but the president has determined that a statutory law violates the Constitution.” She notes that previous presidents also used signing statements to raise constitutional questions about specific portions of selected legislation. Senator Russ Feingold (D-WI) is unconvinced by Boardman’s arguments. Bush is using signing statements, he says, “to advance a view of executive power that, as far as I can tell, has no bounds. [The White House has] assigned itself the sole responsibility for deciding which laws it will comply with, and in the process has taken upon itself the powers of all three branches of government.” [Savage, 2007, pp. 248-249]

Tenet Healthcare Corp., the country’s second largest hospital chain, agrees to a $900 million settlement with the Justice Department over allegations that it defrauded Medicare. In 2003, the company was charged with violating the False Claims Act. The government alleged that Tenet had billed for services not rendered, inflated reimbursable costs, and paid kickbacks to doctors for referrals. The company, which admits no guilt—only that it made billing “mistakes”—will pay $725 million over a four-year period to resolve the billing dispute and will forfeit its right to collect $175 million in Medicare payments for past services. Wall Street analysts had expected the amount to be well over a billion. [Reuters, 6/29/2006; US Department of Justice, 6/29/2006; Tenet Healthcare Corp., 6/29/2006 ]

Civil liberties lawyer and columnist Glenn Greenwald states that the recent Supreme Court ruling in Hamdan v. Rumsfeld (see June 30, 2006), finding that the Bush administration’s Guantanamo Bay military commissions violate both federal law and the Geneva Conventions, also proves that the NSA’s warrantless wiretapping program is illegal (see December 15, 2005). “To arrive at its decision,” Greenwald writes, “the Court emphatically rejected the administration’s radical theories of executive power, and in doing so, rendered entirely discredited the administration’s only defenses for eavesdropping on Americans without the warrants required by law. Actual compliance with the Court’s ruling, then, compels the administration to immediately cease eavesdropping on Americans in violation of FISA,” the Foreign Intelligence Surveillance Act (see 1978). “If the administration continues these programs now, then they are openly defying the Court and the law with a brazeness and contempt for the rule of law that would be unprecedented even for them.” Greenwald notes that FISA prohibits any surveillance of American citizens without judicial approval and oversight. The Bush administration has already admitted to conducting just such surveillance (see December 17, 2005 and December 21, 2005), and President Bush has even stated his intention to expand the program (see December 19, 2005). The Justice Department and a number of administration officials have attempted to claim the NSA surveillance program is both legal and necessary (see December 19, 2005, December 19, 2005, December 21-22, 2005, and Early 2006); Greenwald writes that the Hamdan decision “decimated” those claims, a conclusion shared by a number of legal experts (see January 9, 2006). Moreover, he writes, there is no remaining excuse for Democratic senators not to endorse Senator Russ Feingold’s resolution to censure Bush for violating FISA (see March 12, 2006 and After). The argument advanced by, among others, Senator Barack Obama (D-IL), that Bush believed he was complying with the law because his lawyers told him he was in compliance, is no longer relevant in light of Hamdan, Greenwald argues. “[T]here is no longer any good faith basis left for violating FISA. Ongoing warrantless eavesdropping can only be ordered by the president with a deliberate intent to break the law. After Hamdan, there are no more excuses left for the president to violate FISA, and there is therefore no more excuse left for Democratic senators to refuse to take a stand with Sen. Feingold against the administration’s lawbreaking.” Bush has two clear choices, Greenwald writes: either to comply with FISA or openly defy the Supreme Court. “If we are a country that continues to operate under the rule of law, compliance with the Supreme Court’s ruling compels the immediate cessation of the president’s warrantless eavesdropping program, as well as what are undoubtedly the other, still-secret programs prohibited by law but which have been justified by these same now-rejected theories of unlimited executive power. Put simply, after Hamdan, there are no more excuses left for the president’s refusal to comply with the law.” [Crooks and Liars, 7/8/2006]

Daniel Dell’Orto. [Source: US Department of Defense]Shortly after the Supreme Court rules that the Geneva Conventions apply to detainees suspected of terrorist affiliations (see June 30, 2006), the Bush administration publicly agrees to apply the Conventions to all terrorism suspects in US custody, and the Pentagon announces that it is now requiring all military officials to adhere to the Conventions in dealing with al-Qaeda detainees. The administration says that from now on, all prisoners in US custody will be treated humanely in accordance with the Conventions, a stipulation that would preclude torture and “harsh interrogation methods.” Until the ruling, the administration has held that prisoners suspected of terrorist affiliations did not have the right to be granted Geneva protections (see February 7, 2002). Lawyer David Remes, who represents 17 Guantanamo detainees, says, “At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions. The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions.” But in the wake of the ruling the administration is pressuring Congress to introduce legislation that would strip detainees of some of the rights afforded them under the Conventions, including the right to free and open trials, even in a military setting. “The court-martial procedures are wholly inappropriate for the current circumstances and would be infeasible for the trial of these alien enemy combatants,” says Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel. Bradbury and Daniel Dell’Orto, the Defense Department’s principal deputy attorney general, have repeatedly urged lawmakers to limit the rights of detainees captured in what the administration terms its war on terrorism. Dell’Orto says Congress should not require that enemy combatants be provided lawyers to challenge their imprisonment. Congressional Democrats have a different view. Senate Judiciary Chairman Patrick Leahy (D-VT) says, “I find it hard to fathom that this administration is so incompetent that it needs kangaroo-court procedures to convince a tribunal of United States military officers that the ‘worst of the worst’ imprisoned at Guantanamo Bay should be held accountable” for crimes. “We need to know why we’re being asked to deviate from rules for courts-martial.” [Washington Post, 7/12/2006]

Judge Vaughn Walker of the US District Court of Northern California rejects a request by the Justice Department to dismiss a lawsuit by the Electronic Frontier Foundation (EFF—see January 31, 2006) against AT&T. The EFF argues that AT&T violated its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s allegedly illegal domestic wiretapping project. The government has asserted that the lawsuit would jeopardize “state secrets” if permitted to go forward (see May 22, 2006 and June 23, 2006). According to AT&T whistleblower Mark Klein, working with the EFF in the lawsuit, Walker “ridicule[s]” the government’s request for dismissal on state secrets grounds, finding that “[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content.… AT&T and the government have for all practical purposes already disclosed that AT&T assists the government in monitoring communication content. [T]he government has publicly admitted the existence of a ‘terrorist surveillance program’ (see After September 11, 2001, After September 11, 2001, October 2001, and September 2002).… Considering the ubiquity of AT&T telecommunications services, it is unclear whether this program could even exist without AT&T’s acquiescence and cooperation.” EFF had given Walker the ammunition for his finding by providing him with a raft of media stories about AT&T’s involvement in the NSA surveillance program, as well as media coverage of Klein’s assertions (see April 12, 2006 and May 17, 2006). “The very subject matter of this action is hardly a secret” any longer, Walker finds (see May 24, 2006). “[D]ismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.” Walker also rejects a separate motion to dismiss by AT&T, which had argued that its relationship with the government made it immune from prosecution. Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “This cases arises against the backdrop of the accountability of the government as it pursues its surveillance program. This is a significant victory for the principle of government accountability.” AT&T spokesman Walt Sharp refuses to give a direct comment about the ruling, but says that AT&T has always protected its customers’ privacy (see February 2001 and Beyond, February 2001, and Late 2002-Early 2003). The government will obtain a stay of Walker’s ruling while it files an appeal, preventing the EFF documents from being publicly disseminated. [New York Times, 7/21/2006; Klein, 2009, pp. 78-79]

Following up on the Supreme Court’s recent Hamdan ruling that the Bush administration’s military commissions trial system is illegal (see June 30, 2006), a dozen members of the Judge Advocate General (JAG) corps meets with a team of White House lawyers. The JAG officers are experts in military law; much of their training centers on how to best conduct their legal proceedings in line with the Geneva Conventions. Most JAG officers had opposed the Bush administration’s decision to ignore Geneva (see June 8, 2004) in its treatment of detainees; in return, the White House’s civilian lawyers had dismissed the JAG officers as, in author and reporter Charlie Savage’s words, “closed minded, parochial, and simplistic.” The JAGs view the Hamdan ruling as vindication of their objections; for its part, the Justice Department is eager to be able to say that it incorporated the JAGs’ views in its proposed legislation for a new system of detainee trials. The JAGs’ overriding concern is to ensure that no secret evidence can be used against detainees in future trials. Defendants must be able to see and respond to all evidence used against them, the JAGs believe, otherwise the trials are not in compliance with Geneva. The original military commissions required that defendants and their lawyers be removed from the courtroom when classified evidence was introduced, a practice that the military lawyers believe was a basic violation of defendant rights. Unfortunately for the JAGs, they quickly learn that the White House lawyers are uninterested in their views. When they take their seats in a Justice Department conference room, the White House lawyers inform them that there is no reason to discuss the secret evidence question, because more senior officials will ultimately make that decision. Instead, the JAGs are limited to discussing minor technical issues and typographical changes. The meeting does allow Attorney General Alberto Gonzales to testify to Congress in early August that “our deliberations have included detailed discussions with members of the JAG corps,” whose “multiple rounds of comments… will be reflected in the legislative package.” Unlike the White House lawyers, Congress will listen to the JAG officers, and will outlaw the use of secret evidence in detainee trials. [Savage, 2007, pp. 279-281]

Federal district court judge Anna Diggs Taylor rules that the NSA’s warrantless wiretapping program (see Early 2002) is unconstitutional and orders it ended. She amends her ruling to allow the program to continue while the Justice Department appeals her decision. The decision is a result of a lawsuit filed by the American Civil Liberties Union (ACLU) and other civil liberties groups. Taylor rules that the NSA program violates US citizens’ rights to privacy and free speech, the Constitutional separation of powers among the three branches of government, and the Foreign Intelligence Surveillance Act (see 1978). Taylor writes: “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” [Verdict in ACLU et al v. NSA et al, 8/17/2006 ; Washington Post, 8/18/2006] The program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III,” Taylor writes, and adds, “[T]he president of the United States… has undisputedly violated the Fourth in failing to procure judicial orders.” [CNN, 8/17/2006]Judge Lets One Portion Stand - Taylor rejects one part of the lawsuit that seeks information about the NSA’s data mining program (see October 2001), accepting the government’s argument that to allow that portion of the case to proceed would reveal state secrets (see March 9, 1953). Other lawsuits challenging the program are still pending. Some legal scholars regard Taylor’s decision as poorly reasoned: national security law specialist Bobby Chesney says: “Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision. The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.” The White House and its Republican supporters quickly attack Taylor, who was appointed to the bench by then-President Jimmy Carter, as a “liberal judge” who is trying to advance the agenda of Congressional Democrats and “weaken national security.” For instance, Senator Mike DeWine (R-OH) says that halting the program “would hamper our ability to foil terrorist plots.” [Washington Post, 8/18/2006]Democrats, Civil Libertarians Celebrate Ruling - But Democrats defend the ruling. For instance, Senator John Kerry (D-MA) says the ruling provides a much-needed check on the unfettered power of the Bush White House. “[N]o one is above the law,” says Kerry. [Washington Post, 8/18/2006] Lawyers for some of the other cases against the NSA and the Bush administration laud the decision as giving them vital legal backing for their own court proceedings. “We now have a ruling on the books that upholds what we’ve been saying all along: that this wiretapping program violates the Constitution,” says Kevin Bankston, who represents the Electronic Frontier Foundation (EFF) in its class-action case against AT&T for its role in the NSA’s surveillance program (see January 31, 2006). [Washington Post, 8/18/2006] Legal expert and liberal commentator Glenn Greenwald writes that Taylor’s ruling “does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA. Thus, even under the court’s order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court—just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the [British] terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.” Greenwald writes: “[T]he political significance of this decision cannot be denied. The first federal court ever to rule on the administration’s NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law. And in so holding, the court eloquently and powerfully rejected the Bush administration’s claims of unchecked executive power in the area of national security.” [Salon, 8/17/2006]White House Refuses to Comply - The Bush administration refuses to comply with Taylor’s ruling, asserting that the program is indeed legal and a “vital tool” in the “war on terrorism.” It will quickly file an appeal, and law professors on both sides of the issue predict that Taylor’s ruling will be overturned. [Savage, 2007, pp. 206]Lawsuit Ends with White House 'Compromise' - The lawsuit will end when the White House announces a “compromise” between the wiretapping program and FISC (see January 17, 2007).

President Musharraf appeared on the Daily Show with Jon Stewart to promote his new book. [Source: Adam Rountree / AP]President Pervez Musharraf of Pakistan publishes his autobiography, In the Line of Fire, generating a number of controversies: He speculates that Omar Saeed Sheikh, who was involved in the kidnapping and murder of Daniel Pearl (see January 23, 2002) and is said to have wired money to the 9/11 hijackers (see Early August 2001), may have been recruited by MI6 in the 1990s (see Before April 1993). The Independent will also comment, “he does not mention that British-born Omar Saeed Sheikh, who planned the Pearl abduction, had surrendered a week before his arrest was announced to a general with intelligence links who was Musharraf’s friend. What happened during that week?” [Independent, 11/21/2006] Musharraf writes, “Those who habitually accuse us of not doing enough in the war on terror should simply ask the CIA how much prize money it has paid to the Government of Pakistan.” [Press Trust of India, 9/28/2006] However, US law forbids rewards being paid to a government. The US Justice Department says: “We didn’t know about this. It should not happen. These bounty payments are for private individuals who help to trace terrorists on the FBI’s most-wanted list, not foreign governments.” [London Times, 9/26/2006] Musharraf then backtracks and claims the Government of Pakistan has not received any money from the US for capturing people. [Press Trust of India, 9/28/2006] He also claims that State Department Official Richard Armitage threatened that if Pakistan did not co-operate with the “war on terror,” the US would bomb it “back into the stone age” (see September 13-15, 2001). The book does not receive good reviews. For example, the Independent calls it “self-serving and self-indulgent” and concludes that “Readers who want to understand contemporary Pakistan deserve a more honest book.” [Independent, 11/21/2006] In a review with the sub-heading “Most of Gen. Pervez Musharraf’s new book cannot be believed,” the Wall Street Journal writes, “The book is not so much an autobiography as a highly selective auto-hagiography, by turns self-congratulatory, narcissistic, and mendacious.” [Wall Street Journal, 10/19/2006]

Federal prosecutors attempt to determine just how much corruption, fraud, and theft has occurred among government contracts handed out to corporations for their work in Iraq. The preliminary answer: a great deal. The US Justice Department chooses to center its probe into war profiteering in the small town of Rock Island, Illinois, because high-ranking Army officials at the arsenal there administer KBR’s LOGCAP III contract to feed, shelter, and support US soldiers, and to rebuild Iraq’s oil infrastructure. KBR, formerly Kellogg, Brown, & Root, is a subsidiary of oil-construction giant Halliburton. The reported violations are rampant (see February 20, 2008, October 2005, October 2002, April 2003, June 2003, and September 21, 2007). [Chicago Tribune, 2/20/2008] The investigation is under the aegis of the National Procurement Fraud Task Force, formed by the Justice Department to detect, identify, prevent, and prosecute procurement fraud by firms such as KBR. The Task Force includes the FBI, the US Inspectors General community, the Executive Office for United States Attorneys, and others. [PR Newswire, 7/13/2007]Multiple Prosecutions Underway - The Justice Department prosecutes four former supervisors for KBR, the large defense firm responsible for most of the military logistics and troop supply operations in Iraq. The government also prosecutes five executives from KBR subcontractors; an Army officer, Pete Peleti, has been found guilty of taking bribes (see February 20, 2008). Two KBR employees have already pleaded guilty in another trial, and about twenty more people face charges in the ever-widening corruption scandal. According to recently unsealed court documents, kickbacks, corruption, and fraud were rampant in contractual dealings months before the first US combat soldier arrived in Iraq. Not only did KBR contractors receive handsome, and illicit, payoffs, but the corruption and fraud endangered the health and safety of US troops stationed in Iraq and Kuwait. One freight-shipping subcontractor has already confessed to bribing five KBR employees to receive preferential treatment; five more were named by Peleti as accepting bribes. Prosecutors have identified three senior KBR executives as having approved deliberately inflated bids. None of these people have yet been charged. Other related charges have been made, from KBR’s refusal to protect employees sexually assaulted by co-workers to findings that the corporation charged $45 for a can of soda. Pentagon Slashed Oversight - The overarching reason why such rampant fraud was, and is, taking place, prosecutors and observers believe, is that the Department of Defense outsourced critical troop support jobs while simultaneously slashing the amount of government oversight (see 2003 and Beyond). Lack of Cooperation - Kuwait refuses to extradite two Middle Eastern businessmen accused of LOGCAP fraud. And KBR refuses to provide some internal documents detailing some of its managers’ business dealings. KBR says it “has not undertaken an exhaustive search of its millions of pages of procurement documents” to determine whether other problems exist. [Chicago Tribune, 2/20/2008; Chicago Tribune, 2/21/2008]

The New York Times pens an editorial issuing a grim warning about the ramifications of the newly passed Military Commission Act (MCA—see October 17, 2006). The editorial calls the law’s stripping of habeas corpus rights for so-called “enemy combatants” “undemocratic.” It criticizes the highly charged rhetoric of the Republicans who attacked Democrats in opposition to the law as part of the Republican Party’s “scare-America-first strategy” for the upcoming midterm elections. The Times notes that President Bush misled the country into believing that the MCA is the only way the country has of adequately putting 9/11 suspects on trial: “The truth is that Mr. Bush could have done that long ago, but chose to detain them illegally at hidden CIA camps to extract information. He sent them to Guantanamo only to stampede Congress into passing the new law. The 60 or so men at Guantanamo who are now facing tribunals—out of about 450 inmates—also could have been tried years ago if Mr. Bush had not rebuffed efforts by Congress to create suitable courts. He imposed a system of kangaroo courts that was more about expanding his power than about combating terrorism.” The editorial criticizes Bush’s new “separate system of justice for any foreigner whom Mr. Bush chooses to designate as an ‘illegal enemy combatant,” one that “raises insurmountable obstacles for prisoners to challenge their detentions [and] does not require the government to release prisoners who are not being charged, or a prisoner who is exonerated by the tribunals.” However, the editorial gives false comfort to its readers by asserting that the MCA “does not apply to American citizens, but it does apply to other legal United States residents.” [New York Times, 10/19/2006]Times Errs in Stating MCA Does Not Apply to US Citizens - Most other mainstream media outlets do not mention the possibility of the MCA applying to US citizens. But on the same day as the Times editorial, author and investigative journalist Robert Parry gives a powerful argument that the MCA can indeed be applied to them. The MCA reads in part, “Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.… Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States… shall be punished as a military commission… may direct.” The legal meaning of “any person,” Parry notes, clearly includes US citizens, particularly those who may act “in breach of an allegiance or duty to the United States.” Parry asks, “Who has ‘an allegiance or duty to the United States’ if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.” If an American citizen is charged with a crime under the MCA, that citizen, like the foreign nationals currently laboring under the weight of the law, cannot challenge their detention and charges under the habeas corpus provisions of US law, and cannot expect a fair trial. They will not be given the chance to appeal their convictions until they are prosecuted, convicted, and sentenced. And since the MCA defendant has no right to a “speedy trial,” that defendant cannot expect to be granted an appeal in any reasonable length of time. In effect, an American citizen, like a foreign national charged under the MCA, can be imprisoned indefinitely without recourse to the US judiciary. Potential to Jail Media Leakers and Reporters - One aspect of the MCA that has not been widely discussed, Parry notes, is the provision that would allow the incarceration of “any person” who “collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States.” That provision is tremendously vague, and could easily be stretched to fit, for example, the whistleblowers who revealed the existence of the NSA’s warrantless wiretapping program to the Times (see December 15, 2005) and the reporters and editors who published the story based on those revelations. [Consortium News, 10/19/2006] Six months later, a Justice Department lawyer will confirm that the Bush administration believes MCA does indeed apply to US citizens (see February 1, 2007).

After an investigation into whether an Israeli lobbying organization improperly tried to influence House Minority Leader Nancy Pelosi (D-CA) into naming Jane Harman (D-CA) as the chairman of the House Intelligence Committee (see Summer 2005 and October 2005) becomes public knowledge, Harman calls the allegations “irresponsible, laughable, and scurrilous.” Former Solicitor General Theodore Olson, a Republican just hired by Harman to represent her in the matter, tells Time reporter Timothy Burger: “Congresswoman Harman has asked me to follow up on calls you’ve had. She is not aware of any such investigation, does not believe that it is occurring, and wanted to make sure that you and your editors knew that as far as she knows, that’s not true.… No one from the Justice Department has contacted her.” Burger notes that “[i]t is not, however, a given that Harman would know that she is under investigation.” Olson confirms that Harman hired him because even though she doesn’t believe the media reports of the investigation, she takes the possibility seriously. The American Israel Public Affairs Committee (AIPAC), allegedly Harman’s partner in the scheme, also denies any wrongdoing, and says it takes no position on the question of who wins the committee assignment, which was perceived to be a contest between Harman and fellow committee member Alcee Hastings (D-FL). AIPAC spokesman Patrick Dorton says: “Both Congressman Hastings and Congresswoman Harman are strong leaders on issues of importance to the pro-Israel community and would be exemplary Democratic leaders for the House intelligence committee. AIPAC would never engage in a quid pro quo in relation to a federal investigation or any federal matter and the notion that it would do so is preposterous. AIPAC is not aware that the Justice Department is looking into issues involving the intelligence committee, and has not been asked any questions or contacted by the government on this matter, but certainly would cooperate with any inquiry.” Dorton adds that AIPAC has previously been assured that the organization and its current employees are not being investigated. [Time, 10/20/2006]

The CIA acknowledges that it has operated under the rubric of two secret Bush administration documents that authorized it to detain and interrogate terrorism suspects overseas. Since 2004, the agency has refused to either confirm or deny the existence of the documents, and has argued in court that to make such an acknowledgement would jeopardize national security. The American Civil Liberties Union, which has fought the CIA in court over the documents, says in a statement by its executive director, Anthony Romero: “The CIA’s sudden reversal on these secret directives is yet more evidence that the Bush administration is misusing claims of national security to avoid public scrutiny. Confusion about whether such a presidential order existed certainly led to the torture and abuse scandal that embarrassed America. With a new Congress and renewed subpoena power, we now need to look up the chain of command.” One of the documents is a secret executive order signed by President Bush authorizing the CIA to set up “black site” detention facilities overseas (see September 17, 2001), and the other is a Justice Department legal analysis specifying interrogation methods that CIA interrogators could use against top al-Qaeda suspects. In legal papers previously filed in court, the CIA claimed that national security would be gravely injured if the CIA were compelled to admit or deny even an “interest” in interrogating detainees. Today, however, the agency acknowledges the existence of the two documents. It continues to withhold the documents themselves; their contents remain unknown to the public. The ACLU’s Jameel Jaffer says: “We intend to press for the release of both of these documents. If President Bush and the Justice Department authorized the CIA to torture its prisoners, the public has a right to know.” [American Civil Liberties Union, 11/14/2006]

The Justice Department argues in federal court that immigrants arrested in the US and labeled as “enemy combatants” under the Military Commissions Act (MCA) (see October 17, 2006) can be indefinitely detained without access to the US justice system. The argument comes as part of the Justice Department’s attempt to dismiss a habeas corpus suit challenging the detention of Ali Saleh Kahlah al-Marri, a Qatari citizen accused by the government of being an al-Qaeda agent (see December 12, 2001 and February 1, 2007). The government argues that the MCA “removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al-Marri.… In plain terms, the MCA removes this Court’s jurisdiction (as well as the district court’s) over al-Marri’s habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.” This is the first time the Bush administration has argued in court that the MCA strips a detainee held within the US of habeas rights. Defense Counterargument - Al-Marri’s lawyers say that because he is being held in a South Carolina detention facility, he has the right to challenge his detention in a civilian court like any other non-citizen held on criminal charges. The Justice Department says that enemy combatants have no such rights regardless of where they are being held. Jonathan Hafetz, one of al-Marri’s lawyers, says: “[T]he president has announced that he can sweep any of the millions of non-citizens off the streets of America and imprison them for life in a military jail without charge, court review, or due process. It is unprecedented, unlawful, and un-American.” [Jurist, 11/14/2006] The government has “never admitted that he has any rights, including the right not to be tortured,” Hafetz adds. “They’ve created a black hole where he has no rights.” [Progressive, 3/2007] The Bush administration is also challenging lawsuits filed by detainees at the Guantanamo Bay detention facility on similar grounds. [Jurist, 11/14/2006]

The Director of National Intelligence, John Negroponte, and NSA Director Keith Alexander try to get a lawsuit dismissed that alleges the NSA illegally wiretapped a Saudi charitable organization (see February 28, 2006). The organization, the Al Haramain Islamic Foundation, is presenting a classified US document as proof of the illegal wiretapping. Invoking 'State Secrets' Privilege - In late 2006, Negroponte and Alexander tell the presiding judge, US District Judge Garr King, that in order to defend itself, the government would have to disclose “state secrets” (see March 9, 1953) that would expose US anti-terrorism efforts. This same argument will be reiterated in July 2007, when government lawyers say, “Whether plaintiffs were subjected to surveillance is a state secret, and information tending to confirm or deny that fact is privileged.” The judge will hear arguments for and against dismissing the case on August 15, 2007. [Associated Press, 8/5/2007]Judicial Examination - King, in Portland, Oregon, examined the document for himself, and read classified briefs supplied by the Justice Department. Upon reading the briefs, King met with government lawyers to discuss turning over yet more documents in discovery—a decision unlikely to have been taken had King not believed the evidence did not show that the Al Haramain plaintiffs were, in fact, monitored. And, under FISA, had the surveillance been lawful and court-ordered, King would have been legally constrained to dismiss the lawsuit, since according to that law, plaintiffs can only sue if no warrant was ever issued for the alleged surveillance. “If there was a FISA warrant, the whole case would have crumbled on the first day,” says plaintiff attorney Thomas Nelson, “It’s pretty obvious from the government’s conduct in the case, there was no warrant.” 'Inherent Authority' of President - Justice Department lawyers rely on the argument that the president has the inherent authority to order surveillance of suspected terrorists with or without warrants, and that to judge the president’s decision would reveal national secrets that would alert terrorists to government anti-terrorist actions, thereby mandating that this and other lawsuits be dismissed. Consolidation of Lawsuits - An August 2006 court ruling ordering that the Al Haramain case be consolidated with 54 other NSA-related lawsuits, under US District Court Judge Vaughn Walker, damaged the government’s argument that it cannot be sued in court. Walker has presided over the year-old class-action lawsuit brought before his court by the Electronic Frontier Foundation against AT&T for the telecom firm’s cooperation with the NSA program (see January 31, 2006); Walker ruled in July 2006 that the case would proceed, against government requests that it be thrown out because of national security requirements. Walker ruled that because the government had already admitted to the existence of the program, the state secrets privilege does not apply. (The Justice Department is appealing Walker’s decision.) As for Al Haramain, its lawyers want that case to be adjudicated separately, because the court has sufficient evidence to decide on the case without waiting for the appellate court decision. Another lawyer for the plaintiffs, Jon Eisenberg, tells Walker in February 2007, “You need only read the statutes to decide, ‘Does the president have the right to do this without a warrant?’” Walker has yet to rule on that request. [Wired News, 3/5/2007]

A 2008 Justice Department report reveals that in January 2007, the CIA prevents Justice Department investigators from questioning al-Qaeda leader Abu Zubaida, who is being held at the Guantanamo prison. The Justice Department will say the CIA’s obstruction was “unwarranted” and “hampered” an investigation by the department’s Office of Inspector General into the FBI’s knowledge of abuse by CIA and Defense Department interrogators. The CIA’s acting general counsel John Rizzo refused to grant access to Zubaida, claiming that he “could make false allegations against CIA employees.” By contrast, Defense Department officials grant the same investigators access to other Guantanamo detainees also allegedly subjected to torture. After Zubaida was captured in early 2002, the CIA subjected him to harsh torture techniques, including waterboarding (see Mid-May 2002 and After). [Newsweek, 5/20/2008]

The CIA continues to fight an American Civil Liberties Union (ACLU) lawsuit demanding that it turn over three key memos authorizing the detention and interrogation of suspected terrorists at secret overseas “black sites” (see November 10, 2006). Court documents filed by the agency cite national security concerns for keeping the documents hidden from public scrutiny. ACLU attorney Amrit Singh says: “The CIA’s declaration uses national security as a pretext for withholding evidence that high-level government officials in all likelihood authorized abusive techniques that amount to torture. This declaration is especially disturbing because it suggests that unlawful interrogation techniques cleared by the Justice Department for use by the CIA still remain in effect. The American public has a right to know how the government is treating its prisoners.” One document is a lengthy presidential order described by the CIA as a “14-page memorandum dated 17 September 2001 from President Bush to the director of the CIA pertaining to the CIA’s authorization to detain terrorists” (see September 17, 2001). Twelve of the 14 pages are “a notification memorandum” from the president to the National Security Council regarding a “clandestine intelligence activity.” ACLU officials say this statement “raises questions regarding the extent to which Condoleezza Rice was involved in establishing the CIA detention program as national security adviser.” The CIA declares in the brief that the presidential document is so “Top Secret” that NSC officials created a “special access program” governing access to it. The brief states that “the name of the special access program is itself classified SECRET,” meaning that the CIA believes that the disclosure of the program’s name “could be expected to result in serious danger to the nation’s security.” The other two documents are, respectively, an August 1, 2002 Justice Department memo “advising the CIA regarding interrogation methods it may use against al-Qaeda members” (see August 1, 2002), and an apparent “draft” version of the August 1 memo prepared for White House counsel Alberto Gonzales by Assistant Attorney General Jay Bybee, the then-head of the Justice Department’s Office of Legal Counsel. The draft memo apparently contends that physical abuse only equates to torture under US law if it inflicts pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo was later rescinded (see December 2003-June 2004). The ACLU’s Jameel Jaffer says: “Through these memos, the president and Office of Legal Counsel created a legal framework that was specifically intended to allow the CIA to violate both US and international law. While national security sometimes requires secrecy, it is increasingly clear that these documents are being kept secret not for national security reasons but for political ones.” [American Civil Liberties Union, 1/10/2007]

The Bush administration confirms that it believes US citizens can be designated as “enemy combatants” under the Military Commissions Act (MCA—see October 17, 2006). The confirmation comes during the trial of Ali Saleh Kahlah al-Marri, a Qatari and the only person on the American mainland being held as an enemy combatant. Al-Marri, currently held at the Charleston, South Carolina Naval brig, is a legal US resident accused of being a sleeper agent for al-Qaeda (see September 10, 2001). He was arrested in December 2001, while living with his family and studying computer science at Bradley University in Illinois. Al-Marri is charged, not with any direct terrorist activities, but with credit card fraud and lying to federal agents. He is challenging his indefinite detention in federal court, and the government is using the MCA to argue that al-Marri has no status in the courts because of his designation as an enemy combatant. One of the appellate court judges, Roger Gregory, asks Justice Department lawyer David Salmons, “What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’” Salmons responds that the government can do just that, without interference from the courts, and adds, “A citizen, no less than an alien, can be an enemy combatant.” Gregory and the second of the three appellate judges, Diana Gribbon Motz, seem uncomfortable with the law’s provisions that the US judiciary has no role in such designations. When Motz asks Salmons about the difference between nations making war and individuals committing acts of terrorism, Salmons retorts with a familiar, and long-disputed, argument that the US Congress gave the government the right to detain terrorist suspects without charge or recourse to the judiciary when it granted the administration the right to use military force against terrorists after the 9/11 attacks (see September 14-18, 2001). Theoretically Declaring War on PETA - Motz is skeptical of the argument, and asks a series of hypothetical questions about just what organizations or individuals President Bush could designate as enemy combatants. Using the animal rights group People for the Ethical Treatment of Animals (PETA) as an example, Motz asks, “Could the president declare war on PETA?” Salmons says the question is unrealistic, but refuses to say that Bush could not do so if he chose. The Bush administration is careful in its use of the enemy combatant designation, Salmons says, therefore, “The representative of PETA can sleep well at night.” [New York Times, 2/2/2007]Ignoring Constitutional Concept of 'Inalienable Rights' - Author and investigative journalist Robert Parry notes that in the al-Marri case, the Bush administration is arguing against the concept of “inalienable,” or “unalienable,” rights as granted by the Constitution and the Bill of Rights. According to the administration, as long as the US is embroiled in what it calls the “war on terror,” Bush can use his “plenary,” or unlimited, executive powers to essentially waive laws and ignore Constitutional rights if he so chooses. Parry writes that “since the ‘war on terror’ will go on indefinitely and since the ‘battlefield’ is everywhere, Bush is asserting the president’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.” Parry concludes, “The Justice Department’s arguments in the [al-]Marri case underscore that Bush still sees himself as a modern-day version of the absolute monarch who gets to decide which rights and freedoms his subjects can enjoy and which ones will be denied.” [Consortium News, 2/3/2007]

Attorneys for accused al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri (see December 12, 2001) challenge his detention as an enemy combatant (see June 23, 2003). The attorneys, appearing before a three-judge panel in Richmond’s Fourth US Court of Appeals, say that al-Marri is being held unconstitutionally and should be allowed to challenge his imprisonment in court under his right to habeas corpus. Al-Marri, a Qatari national, is the only person being held as an enemy combatant on US soil. His lawyers argue that he has inalienable rights as a legal resident of the US, including the right to due process and to challenge his accusers in court. One of al-Marri’s lawyers, Jonathan Hafetz, tells the court: “The basic question is whether criminal or military law governs this case. [The president] cannot militarize the case of a man in Peoria with the stroke of a pen.” The government says that the Military Commissions Act (MCA) (see October 17, 2006) gives the government the right to hold al-Marri and any other designated enemy combatant indefinitely, without recourse to the courts. Hafetz contends that the MCA doesn’t repeal defendants’ right to challenge their detention. He also says al-Marri was improperly classified as an enemy combatant. Justice Department lawyers argue that the court has no jurisdiction to hear such cases, and that the government has classified evidence proving that al-Marri is indeed an al-Qaeda agent. Judge Diana Gribbon Motz asks Justice Department lawyer David Salmons what would stop Bush from declaring anyone he chose an enemy combatant, even if that person was a citizen of a nation not at war with the US. “What I don’t understand is how you make one an enemy combatant,” she says. “What did the president look to, to call someone an enemy combatant?” Salmons says that Congress and the Supreme Court have granted Bush the authority to fight terrorism, (see September 14-18, 2001) and that authorization grants Bush the right to designate people with suspected al-Qaeda links as enemy combatants. Motz disagrees: “If the US can do this, it’s contrary to the Constitution. It would give other nations the ability to do that by declaring a US citizen an enemy combatant.” Salmons says the 9/11 attacks make the situation different. Al-Marri is supported in the court by, among others, former Attorney General Janet Reno, seven former Justice Department officials, and 29 US law school professors, who all contend that the government’s treatment of al-Marri is unconstitutional and sets a dangerous precedent in depriving US residents of basic legal rights. The case is al-Marri v. Wright, 06-7427.[Associated Press, 2/1/2007]

Victoria Toensing, a former deputy assistant attorney general in the Reagan administration, writes an op-ed for the Washington Post structured to imitate a legal indictment. Toensing asks if anyone can explain “why Scooter Libby is the only person on trial in the Valerie Plame [Wilson] leak investigation?” (The Washington Post, which publishes the op-ed, does not disclose Toensing’s own ties to Libby’s defense—see March 23, 2005. [Washington Post, 2/18/2007] Neither does it disclose the longtime personal relationship between Toensing, her husband Joseph DiGenova, and columnist Robert Novak, who outed Plame Wilson—see July 14, 2003. [Wilson, 2007, pp. 292] Neither does it disclose Toensing’s frequent criticisms of the investigation, including her position that the CIA and/or Joseph Wilson is responsible for outing Plame Wilson, and her belief that the entire trial is invalid (see November 2-9, 2005, November 3, 2005, November 7, 2005, and September 15, 2006).) Toensing dismisses the arguments laid out by special prosecutor Patrick Fitzgerald that Libby, the former chief of staff to Vice President Dick Cheney, lied to grand jurors (see March 5, 2004 and March 24, 2004) in order to keep secret a White House conspiracy to besmirch the reputation of White House critic Joseph Wilson (see July 6, 2003). Toensing calls the Libby indictment a “he said, she said” case based on conflicting testimony from other people. She proceeds to lay out her own “indictments”: Patrick Fitzgerald - for “ignoring the fact that there was no basis for a criminal investigation from the day he was appointed,” for “handling some witnesses with kid gloves and banging on others with a mallet,” for “engaging in past contretemps with certain individuals that might have influenced his pursuit of their liberty, and with misleading the public in a news conference because… well, just because.” Toensing argues that Fitzgerald should have known from the outset that Plame Wilson was never a covert agent, and if he didn’t, he could have merely asked the CIA. Toensing writes, “The law prohibiting disclosure of a covert agent’s identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure, that the government be taking affirmative steps to conceal the government relationship, and for the discloser to have actual knowledge of the covert status.” Toensing is grossly in error about Plame Wilson’s covert status (see Fall 1992 - 1996, Late 1990s-2001 and Possibly After, April 22, 1999, (July 11, 2003), Before July 14, 2003, July 22, 2003, July 30, 2003, September 30, 2003, October 11, 2003, October 22-24, 2003, January 9, 2006, February 13, 2006, and September 6, 2006). She also insinuates that Fitzgerald has two conflicts of interest: one in prosecuting Libby, as Fitzgerald investigated the Clinton-era pardon of financier Marc Rich, who was represented by Libby, and another in moving to jail reporter Judith Miller for refusing to provide evidence (see July 6, 2005) because Fitzgerald had subpoenaed Miller’s phone records for another, unrelated prosecution. Toensing questions Fitzgerald’s grant of immunity to former White House press secretary Ari Fleischer (see January 29, 2007), and complains that Fitzgerald allowed NBC News bureau chief Tim Russert to be interviewed with his lawyer present (see August 7, 2004), while columnist Robert Novak “was forced to testify before the grand jury without counsel present.” She concludes by accusing Fitzgerald of “violating prosecutorial ethics by discussing facts outside the indictment during his Oct. 28, 2005, news conference” (see October 28, 2005). The CIA - “for making a boilerplate criminal referral to cover its derriere.” The Intelligence Identities Protection Act (IIPA), which Toensing helped negotiate in 1982, was never violated, she asserts, because Plame Wilson was never a covert agent. Instead of handling the issue internally, Toensing writes, the CIA passed the responsibility to the Justice Department by sending “a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer’s disclosure.” Joseph Wilson - for “misleading the public about how he was sent to Niger, about the thrust of his March 2003 oral report of that trip, and about his wife’s CIA status, perhaps for the purpose of getting book and movie contracts.” Toensing writes that Wilson appeared on Meet the Press the same day as his op-ed was published in the New York Times, and told host Andrea Mitchell, “The Office of the Vice President, I am absolutely convinced, received a very specific response to the question it asked and that response was based upon my trip there.” Toensing accepts Cheney’s denial of any involvement in Wilson’s trip and his denial that he was ever briefed on Wilson’s findings. Toensing argues that Wilson lied when he told other reporters that he was sent to Niger because of his “specific skill set” and his connections in the region (see February 21, 2002-March 4, 2002), and not because his wife sent him (see February 19, 2002, July 22, 2003, October 17, 2003, and July 20, 2005). Toensing uses portions of the Senate Intelligence Committee report to bolster her claim (see June 11, 2003 and July 9, 2004). She also challenges Wilson’s assertions that his oral report on his trip was not classified (see March 4-5, 2002, (March 6, 2002), March 8, 2002, and March 5, 2002). And she accuses Wilson of “play[ing] coy” about his wife’s CIA status. The Media - for “hypocrisy in asserting that criminal law was applicable to this ‘leak’ and with misreporting facts to wage a political attack on an increasingly unpopular White House.” Major newspapers have “highfalutin’, well-paid” lawyers who should have known better than to let their clients call for special investigations into the Plame Wilson leak. The media has consistently “display[ed] their prejudice in this case.” Ari Fleischer - “because his testimony about conversations differs from reporters’ testimony, just as Libby’s does.” Fleischer testified under oath that he revealed Plame Wilson’s identity to two reporters, Time’s John Dickerson and NBC’s David Gregory (see 8:00 a.m. July 11, 2003). Dickerson denies it and Gregory refuses to comment. Fleischer testified he did not tell the Washington Post’s Walter Pincus about Plame Wilson’s identity, contradicting Pincus’s own testimony that Fleischer did, indeed, ask repeatedly about the Wilsons (see January 29, 2007 and February 12, 2007). Because Fleischer “contradicted Pincus as materially as Libby contradicted Russert or Time’s Matthew Cooper,” he should be indicted as well. Instead, Fitzgerald gave Fleischer immunity in return for his testimony (see February 13, 2004). In that case, Toensing argues, Fitzgerald should indict Pincus insamuch as his testimony differs from Fleischer’s. Former Deputy Secretary of State Richard Armitage - for not publicly revealing that he was perhaps the first to leak Plame Wilson’s name to the press (see June 13, 2003 and July 8, 2003). Armitage also discussed his FBI interview with his then-subordinate, Marc Grossman, the night before Grossman was due to meet with FBI investigators (see June 10, 2003). The US Justice Department - for “abdicating its legal and professional responsibility by passing the investigation off to a special counsel out of personal pique and reasons of ambition.” Both then-Attorney General John Ashcroft and his deputy, James Comey, could have asked the CIA to confirm Plame Wilson’s covert status, Toensing writes. She also insinuates that Comey acted improperly in giving the investigation to Fitzgerald, “a former colleague and one of his best friends.” [Washington Post, 2/18/2007]Refutation - Toensing’s arguments are refuted by former CIA agent Larry Johnson, who accuses Toensing of attempted jury tampering (see February 18, 2007).

Bradley Schlozman. [Source: US Department of Justice]Congress’s new Democratic leadership decides to investigate the Bush administration’s politicization of the Justice Department’s civil rights division (CRD—see Fall 2002 and After). The investigation is part of a parallel investigation into the firing of nine US attorneys for allegedly political reasons. One of the first replacement US attorneys, Bradley Schlozman, had spent three years as one of the CRD’s political hires most responsible for hiring conservative ideologues to replace CRD career lawyers. The complaints also dovetail with a report that another key figure in the US attorney firing, the Justice Department’s White House liaison Monica Goodling, was being investigated for using partisan political affiliations as part of her decisions to hire career assistant prosecutors, a practice forbidden by federal law. Goodling will later admit to having “crossed the line” by using political litmus tests in her career hiring decisions. Scholzman will admit to having bragged about hiring only Republicans at the Justice Department, but will deny asking any job applicants about their political views or partisan affiliations. [Savage, 2007, pp. 299]

The editorial board of the conservative National Review demands that President Bush pardon convicted felon Lewis Libby immediately (see March 6, 2007). The editorial joins an angry demand for a presidential pardon in the magazine’s pages from former Bush speechwriter David Frum (see March 6, 2007). The editors write that Libby was “the target of a politicized prosecution set in motion by bureaucratic infighting and political cowardice,” powered by “liberal partisans” who leapt on the exposure of CIA official Valerie Plame Wilson and adopted her husband Joseph Wilson’s “paranoid persecution theory” (see June 2003, June 3, 2003, June 11, 2003, June 12, 2003, June 19 or 20, 2003, July 6, 2003, July 6-10, 2003, July 7, 2003 or Shortly After, 8:45 a.m. July 7, 2003, 9:22 a.m. July 7, 2003, July 7-8, 2003, July 11, 2003, (July 11, 2003), July 12, 2003, July 12, 2003, July 18, 2003, October 1, 2003, April 5, 2006, and April 9, 2006). A “scandal-hungry media” joined in with the Wilsons to launch unwarranted attacks on the White House, the editors write, which eventually forced the appointment of a special prosecutor to investigate the Plame Wilson identity leak (see December 30, 2003). The editors blame the CIA, the State Department, Congressional Democrats, and the “liberal media” for forcing the issue, and say the Justice Department was too quick to appoint special counsel Patrick Fitzgerald, whom they note is a “close friend” of the person who appointed him, Deputy Attorney General James Comey (see December 30, 2003). The editors insist that Libby’s “imperfect memory” (see January 31, 2006) led to the charges of perjury and obstruction of justice, and the testimony of reporters throughout the trial proved that their memories were no better than Libby’s. The editors conclude: “There should have been no referral, no special counsel, no indictments, and no trial. The ‘CIA-leak case’ has been a travesty. A good man has paid a very heavy price for the Left’s fevers, the media’s scandal-mongering, and President Bush’s failure to unify his own administration. Justice demands that Bush issue a pardon and lower the curtain on an embarrassing drama that shouldn’t have lasted beyond its opening act.” [National Review, 3/6/2007]

Fred Thompson. [Source: Politico]Former US Senator Fred Dalton Thompson (R-TN), who plays an executive district attorney in the popular television crime drama Law and Order, writes a column for the National Review ironically titled “Law and Disorder,” lambasting the Lewis Libby trial verdict (see March 6, 2007). Thompson, who has aspirations to run for the Republican presidential nomination in 2008, says that special counsel Patrick Fitzgerald “look[ed] like a man who has dodged a bullet and is ready to get out of town” after his post-verdict press conference. Thompson labels the trial verdict a “sorry state of affairs” and says Libby was convicted for two reasons. Justice Department 'Folded under Political and Media Pressure' - First, “the Justice Department folded under political and media pressure because of the Plame [Wilson] leak and appointed a special counsel,” thus “abdicat[ing] their official responsibility” to refuse to investigate the leak. Secondly, “[t]he Plame/Wilson defenders [referring to Valerie Plame Wilson and her husband, war critic Joseph Wilson] wanted administration blood because the administration had had the audacity to question the credibility of Joe Wilson and defend themselves against his charges.” The Justice Department, “in order to completely inoculate themselves, gave power and independence to Fitzgerald that was not available to Ken Starr, Lawrence Walsh, or any prior independent counsel under the old independent counsel law. Fitzgerald became unique in our judicial history in that he was accountable to no one. And here even if Justice had retained some authority they could hardly have asked Fitzgerald why he continued to pursue a non-crime because they knew from the beginning there was no crime.” Thompson writes that, once appointed special counsel, “Fitzgerald began his Sherman’s march through the law and the press until he thought he had finally come up with something to justify his lofty mandate—a case that would not have been brought in any other part of the country” (Thompson is referring to Washington, DC, which many conservatives consider an unusually liberal area of the nation; presumably he is arguing that the jury was unduly comprised of liberals—see January 16-23, 2007). The media, Thompson writes, was by then “suffering from Stockholm syndrome—[t]hey feared and loved Fitzgerald at the same time. He was establishing terrible precedent by his willingness to throw reporters in jail over much less than serious national security matters—the Ashcroft standard! Yet Fitzgerald was doing the Lord’s work in their eyes. This was a ‘bad leak,’ not a ‘good leak’ like the kind they like to use. And it was much better to get the Tim Russert and Ari Fleischer treatment than it is to get the Judith Miller treatment [referring to Russert’s supposed ‘preferential treatment’—see February 14, 2007 and February 16, 2007—Fleischer’s grant of immunity—see February 13, 2004—and Miller’s jailing for contempt—see July 6, 2005]. Fitzgerald paid no price for his prosecutorial inconsistencies, his erroneous public statements, or his possible conflicts of interest. And now they get to point out how this case revealed the ‘deep truths’ about the White House.” 2004 Testimony from Libby Undermined Claim of Innocence - The second reason Libby was convicted, Thompson writes, was his decision to testify before Fitzgerald’s grand jury “without counsel… with this controversy swirling around him while trying to remember and recount conversations with various news reporters—reporters who he knew would be interviewed about these conversations themselves” (see March 5, 2004 and March 24, 2004). (Libby is himself a lawyer, and spoke with White House counsel before testifying.) Libby’s decision to testify without the presence of counsel, says Thompson, is the action of “a man with nothing to hide… who doesn’t appreciate the position he is in or what or whom he is dealing with.” Libby was convicted out of actions stemming from his own “naivety” (sic), Thompson writes. [National Review, 3/7/2006]

The Wall Street Journal joins the National Review (see March 6, 2007 and March 6, 2007), the New York Post (see March 7, 2007), and a law professor whom the Journal published in today’s editorial pages (see March 7, 2007) in demanding that President Bush pardon convicted felon Lewis Libby (see March 6, 2007). The Journal’s editorial board hopes that “Bush will realize that this case was always a political fight over Iraq and do the right thing by pardoning Mr. Libby.” Like its fellow conservative pundits and media outlets, the Journal calls the conviction “a travesty of justice,” and writes that the Libby defense team “seems to have blundered by portraying Mr. Libby as the ‘fall guy’ for others in the White House. That didn’t do enough to rebut [special counsel Patrick] Fitzgerald’s theory of the case, and so the jury seems to have decided that Mr. Libby must have been lying to protect something. The defense might have been better off taking on Mr. Fitzgerald for criminalizing political differences.” Libby was “convicted of telling the truth about” Joseph and Valerie Plame Wilson “to some reporters (see June 23, 2003, 8:30 a.m. July 8, 2003, 2:24 p.m. July 12, 2003, and Late Afternoon, July 12, 2003) but then not owning up to it.” The Journal believes Libby “tried to cooperate with the grand jury because he never really believed he had anything to hide” (see March 5, 2004 and March 24, 2004). The entire case was brought, the Journal avers, to attack the Bush administration’s push for war with Iraq. The Bush administration bears its own culpability, the Journal says, for not “confront[ing] Mr. Wilson’s lies head on” and instead becoming “defensive,” allowing “a trivial matter to become a threat to the administration itself.” The White House should not have allowed then-Attorney General John Ashcroft to recuse himself from the investigation (see December 30, 2003) and let the Justice Department appoint Fitzgerald to investigate the leaks. “Mr. Libby got caught in the eddy not because he was dishonest but because he was a rare official who actually had the temerity to defend the president’s Iraq policy against Mr. Wilson’s lies.” The Journal also criticizes “most of our brethren” in the media for “celebrating the conviction… because it damaged the Bush administration they loathe.” It concludes by asserting, “The time for a pardon is now.” [Wall Street Journal, 3/7/2007]

Judge Marcia Cooke. [Source: Daily Business Review]Federal prosecutors in the Jose Padilla case (see May 8, 2002) say that a video of Padilla’s final interrogation, on March 2, 2004, is inexplicably missing. The video was not part of a packet of DVDs containing classified material turned over to the court handling the Padilla case. Padilla’s lawyers believe that the missing videotape may show Padilla being subjected to “harsh” interrogation techniques that may qualify as torture, and wonder if other potentially exculpatory recordings and documentation of Padilla’s interrogations have also been lost. Padilla’s lawyers say something happened during that last interrogation session on March 2, 2004, at the Navy brig in Charleston, South Carolina, that led Padilla to believe that the lawyers are actually government agents. Padilla no longer trusts them, the lawyers say, and they want to know what happened. Prosecutors say that they cannot find the tape despite an intensive search. “I don’t know what happened to it,” Pentagon attorney James Schmidli said during a recent court hearing. US District Court Judge Marcia Cooke finds the government’s claim hard to believe. “Do you understand how it might be difficult for me to understand that a tape related to this particular individual just got mislaid?” Cooke told prosecutors at a hearing last month. Padilla, a US citizen, is scheduled to stand trial in April. Padilla’s lawyers want the brig tapes, medical records, and other documentation to prove their claims that Padilla suffers intense post-traumatic stress syndrome from his long isolation and repeated interrogations, though Cooke has ruled that Padilla is competent to stand trial. They believe that he was mistreated and possibly tortured in the Naval brig before being transferred to civilian custody. This missing DVD may not be the only one because brig logs indicate that there were approximately 72 hours of interrogations that either were not recorded, or whose recordings were never disclosed. Prosecutors claim some interrogations were not recorded, but defense lawyers question that, pointing out that there are even videos of Padilla taking showers. [Newsweek, 2/28/2007; Associated Press, 3/9/2007] Statements by then-Deputy Attorney General James Comey in June 2004 indirectly support the defense’s claim that Padilla was subjected to harsh interrogation tactics (see June 2004). Other videotapes that may pertain to the Padilla case have been destroyed by the CIA (see November 22, 2005). Former civil rights litigator Glenn Greenwald writes, “[I]f the administration’s patently unbelievable claim were true—namely, that it did ‘lose’ the video of its interrogation of this Extremely Dangerous International Terrorist—that would, by itself, evidence a reckless ineptitude with American national security so grave that it ought to be a scandal by itself. But the likelihood that the key interrogation video with regard to Padilla’s torture claims was simply ‘lost’ is virtually non-existent. Destruction of relevant evidence in any litigation is grounds for dismissal of the case (or defense) of the party engaged in that behavior. But where, as here, the issues extend far beyond the singular proceeding itself—we are talking about claims by a US citizen that he was tortured by his own government—destruction of evidence of this sort would be obstruction of justice of the most serious magnitude.” [Salon, 3/10/2007]

A report by Glenn Fine, the Justice Department’s Inspector General, finds that the FBI used self-issued subpoenas known as National Security Letters (NSLs) to obtain phone, e-mail, and financial information on at least 143,074 targets between 2003 and 2005. The report’s main conclusions include: More than half of those targeted are US citizens; In many cases FBI officials evaded limits on NSLs and sometimes illegally issued them; 60% of the audited NSLs do not follow the FBI’s rules of issuance, and a further 22% contain unreported possible violations of the law, including improper requests and unauthorized collections of information; The number of surveillance targets is probably far higher than the audit finds, because the FBI practices poor record-keeping that allow at least 22% of surveillance to go unreported; Fine finds that agents had routinely issued the letters even when they had no open investigation, as required by law; One office made arrangements with telecommunications firms to get information instantly, even before issuing NSLs, by sending “exigent letters” claiming it needed the requested information because of an emergency, and that the letters and necessary court warrants were in preparation (see Before Mid-March, 2007). But, the audit finds, “we could not confirm one instance in which a subpoena had been submitted to any US attorney’s office before the exigent letter was sent to the phone companies” and that “many were not issued in exigent circumstances.” Representative Edward Markey (D-MA), a senior member of the House Homeland Security Committee, wants hearings. “The Inspector General’s report is a scathing critique of FBI misuse of the secretive process,” Markey says. Although the FBI has used NSLs for years, their usage soared after the USA Patriot Act (see October 26, 2001) eased the restrictions on them. Now, FBI agents in counterterrorism and counterintelligence investigations can issue NSLs themselves, without court warrants or even the approval of a supervisor, as long as the agent affirms that the information they seek is “relevant” to an open investigation. The information obtained by NSLs remains in a massive “data warehouse,” where it can be accessed again for data-mining or subsequent investigations. [Wired News, 3/9/2007]

Sharon Eubanks. [Source: Washington Post]Justice Department prosecutors appointed by the Bush administration interfered in the landmark lawsuit against tobacco companies, says the leader of the prosecution team, Sharon Eubanks. Eubanks says that Bush loyalists in Attorney General Alberto Gonzales’s office began micromanaging the team’s strategy in the final weeks of the 2005 trial, to the detriment of the government’s claim that the industry had conspired to lie to US smokers. Eubanks says that a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony and ordered her to read verbatim a closing argument they had rewritten for her. “The political people were pushing the buttons and ordering us to say what we said,” Eubanks says. “And because of that, we failed to zealously represent the interests of the American public.” Eubanks, a 22-year veteran at the Justice Department, says three political appointees were responsible for the last-minute shifts in the government’s tobacco case in June 2005: then-Associate Attorney General Robert McCallum, then-Assistant Attorney General Peter Keisler, and Keisler’s deputy at the time, Dan Meron. The sudden strategy change sparked an uproar in Congress, and led to an inquiry by the Justice Department. Government witnesses said they had been asked to change testimony, and one expert withdrew from the case. Government lawyers also announced that they were rolling back a proposed penalty against the industry from $130 billion to $10 billion. Justice Department officials say that there was no political meddling in the case, an assertion supported by the department’s Office of Professional Responsibility. Eubanks, who left the department in December 2005, has not spoken publicly about the case until now. She says she is now coming forward because she is concerned about what she calls the “overwhelming politicization” of the department demonstrated by the controversy over the firing of eight US attorneys. Lawyers from Justice’s civil rights division have made similar claims about being overruled by supervisors in the past. Eubanks says Congress should investigate the matter along with the US attorney firings. “Political interference is happening at Justice across the department,” she says. “When decisions are made now in the Bush attorney general’s office, politics is the primary consideration.… The rule of law goes out the window.” US District Judge Gladys Kessler ruled in August 2006 that tobacco companies violated civil racketeering laws by conspiring for decades to deceive the public about the dangers of their product. She ordered the companies to make major changes in the way cigarettes are marketed. But she said she could not order the monetary penalty proposed by the government. Matthew Myers of the Campaign for Tobacco-Free Kids was one of the witnesses whom Eubanks asked to change his testimony. Yesterday, he said he found her account to be “the only reasonable explanation” for what transpired. Eubanks says that she was particularly distressed when McCallum, Keisler, and Meron ordered her to read word for word a closing argument they had rewritten. The statement explained the validity of seeking a $10 billion penalty. “I couldn’t even look at the judge,” she says. [Washington Post, 3/22/2007]

Critics say that the legal pursuit of former Wisconsin state purchasing official Georgia Thompson, whose conviction on corruption charges was overturned by a federal appeals court (see April 5, 2007), may have been politically motivated. State Representative David Travis (D-Westport) says Thompson was persecuted by US Attorney Steven Biskupic, a Bush administration appointee. “I think it’s right out of the Karl Rove playbook,” he says, referring to White House political chief Karl Rove. “I never thought I’d see a prosecution like this. That woman is innocent. He’s ruined her life.” Republicans used Thompson’s prosecution and conviction (see June 13, 2006) as a centerpiece of their attempt to thwart the re-election attempts of Governor Jim Doyle (D-WI), who survived a 2006 challenge by Mark Green (R-WI), who accused Doyle of corruption throughout the campaign. Representative Tammy Baldwin (D-WI) calls on Congress to investigate the prosecution, saying the prosecution ties into Congress’s investigation into the firing of eight US Attorneys (see December 7, 2006 and December 20, 2006). “Congress should also look into whether partisan politics influenced, or even dictated, the investigations conducted by the US Attorneys’ offices in order to stay in the [Bush] administration’s good graces,” Baldwin says. “The 7th Circuit acquittal of Georgia Thompson, after a widely publicized pre-election prosecution, certainly raises serious questions about the integrity and motivation of the prosecutor.” Senator Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, asks Attorney General Alberto Gonzales to turn over all of the Justice Department’s records in the Georgia Thompson case to the committee, “including any communications between the Justice Department, the White House, and any other outside party, including party officials.” Leahy, joined by Wisconsin’s two senators Herb Kohl (D-WI) and Russell Feingold (D-WI), also asks Gonzales to turn over records related to voter fraud investigations in Wisconsin (see Early 2005) and any records pertaining to Biskupic’s possible firing. Wisconsin Democrats have long considered Thompson’s prosecution an attempt to besmirch Doyle before the 2006 election, and have accused Biskupic of mounting a politically motivated pursuit of an innocent government official. [Milwaukee Journal-Sentinel, 4/7/2007; Associated Press, 4/10/2007; Associated Press, 4/10/2007] Feingold says in a statement that Thompson was the victim of a “miscarriage of justice,” and adds, “In light of ongoing concerns about the politicization of US Attorneys’ offices around the country, I am seeking further information from the Department of Justice on how this case and voter fraud cases after the 2004 election came about and whether there was improper political pressure to pursue them.” [Federal Document Clearing House, 4/10/2007]Denials of Political Motivations - Biskupic’s First Assistant US Attorney (FAUSA) Michelle Jacobs says that the prosecution of Thompson was not politically motivated, and the office received no contact from the White House or the Justice Department. “They acted on the evidence as they found it, convinced a jury of 12 that there was criminal conduct, convinced a judge who has been sitting on a state and federal bench for 33 years that the verdict was sound,” Jacobs says. “But we just did not convince the court of appeals, and we’ll respect the court of appeals decision.” Andy Gussert, president of the state employees union AFT-Wisconsin, says Congress should look into the Thompson case because servants should “not become political footballs to be kicked around.” He adds: “This prosecution raises additional questions that resonate with concerns about the recent firings of US Attorneys. If people are to have faith in our judicial system, those questions will need answers.” Former State Attorney General Peg Lautenschlager, who was involved in the Thompson investigation, says the investigation was not politically motivated. Lautenschlager is a Democrat, but is considered a political enemy of Doyle’s. Thompson Nearly Destitute - Thompson’s lawyer, Stephen Hurley, says Thompson has been left almost entirely penniless by the case. She lost her $77,300-a-year state job, about $60,000 in back wages, and owes somewhere between $250,000 and $400,000 in legal fees. She was forced to cash in her state pension and sell her $264,700 condominium, which she had paid off entirely. Travis says the federal government should pay her lost wages and legal costs, and compensate her for her time in prison. State officials say they are prepared to offer Thompson her old job or a similar position at the same salary, and are investigating whether they can reimburse her back wages and pay her legal bills. Thompson says she does not want her old job back, but would like another job in the same division. She is very concerned with staying out of the public spotlight. [Milwaukee Journal-Sentinel, 4/7/2007; Associated Press, 4/10/2007]Biskupic Considered for Firing - Unbeknownst to Congress or the press, Biskupic was considered for firing in 2005 (see March 2, 2005), but was later removed from the list of people to be fired. Biskupic himself will soon claim that he did not prosecute Thompson for political purposes (see April 14, 2007).

Suzanne Spaulding. [Source: Bipartisan Security Group]Suzanne Spaulding, a national security expert with twenty years of experience in the CIA, on various Congressional oversight committees, and executive director of two separate commissions on terrorism and weapons of mass destruction, testifies before the Senate Judiciary Committee as part of that body’s hearings on the improper use of National Security Letters (NSLs) by the FBI (see October 25, 2005). Spaulding has spoken out before against the NSA’s wiretapping program (see December 25, 2005). She says that the nation’s law enforcement and intelligence agents need “the tools they need to do their job” and “clear guidance on just what it is that we want them to do on our behalf—and how we want them to do it. Clear rules and careful oversight provide essential protections for those on the front lines of our domestic counterterrorism efforts.” However, Spaulding testifies, “it appears both were lacking in the implementation of national security letter authorities.” Spaulding says that Congress should begin a much larger examination of domestic surveillance issues, saying, “The appropriateness of using FISA electronic surveillance to eavesdrop on Americans should be considered in light of other, less intrusive techniques that might be available to establish whether a phone number belongs to a suspected terrorist or the pizza delivery shop. It’s not the ‘all or nothing’ proposition often portrayed in some of the debates.” However, according to recent findings by the Justice Department’s Inspector General, Glenn A. Fine, “there is not sufficient guidance on how to apply that in the NSL context or in conjunction with other available collection techniques.” Therefore, there is a strong “need for a broader examination of domestic intelligence tools.” Urges Congressional Review - Spaulding urges Congress “to undertake a comprehensive review of all domestic intelligence collection, not just by FBI but also by the other national security agencies engaged in domestic intelligence collection, including the Central Intelligence Agency, the Department of Defense, and the National Security Agency. A Joint Inquiry or Task Force could be established by the Senate leadership, with representation from the most relevant committees (Judiciary, Intelligence, Armed Services, and Homeland Security and Government Affairs), to carefully examine the nature of the threat inside the US and the most effective strategies for countering it. Then Congress, and the American public, can consider whether we have the appropriate institutional and legal framework for implementing those strategies with adequate safeguards and oversight.” FBI's Expanded Powers Need Review - In addition, she testifies, the FBI’s expanded ability to use NSLs under the Patriot Act must be examined. Currently, the law seems to allow the FBI to use NSLs to obtain evidence pursuant to a FISA warrant, thus allowing “the government to get information about individuals who are not themselves the subject of an investigation”—“parties two or three steps removed from their subjects without determining if these contacts reveal suspicious connections,” Fine reported. Spaulding expands on Fine’s findings: “In fact, the most tenuous of connections would seem to suffice for this NSL standard. For example, it’s not clear why an ‘investigation to protect against international terrorism’ couldn’t justify demanding information about all residents of, say, Dearborn, Michigan [home to a large Arab-American community], so that you could run them through some logarithmic profile to identify ‘suspicious’ individuals. In fact, Congress should examine the facts surrounding the nine NSLs in one investigation that were, according to the IG Report, used to obtain information regarding over 11,000 different phone numbers.” Data Mining Efforts Should Be Examined - Also, she says, data mining efforts by other law enforcement and intelligence agencies should be carefully examined and addressed: “NSLs should not become a mechanism for gathering vast amounts of information about individuals with no known connection to international terrorism for purposes of data mining.” Spaulding also notes that the Patriot Act allows FBI special agents in charge (SACs) to issue NSLs; instead, she says, only attorneys in the Justice Department’s National Security Division should be able to issue NSLs. Yet another problem Spaulding notes is the FBI’s policy of retention of data gathered on US citizens through NSLs, even when those citizens have no connection to terrorist activities. Spaulding expressed similar concerns in a previous op-ed for the Washington Post (see December 25, 2005). [Senate Judiciary Committee, 4/11/2007]

After five years of cracking down on voter fraud, the Department of Justice under the Bush administration produces what the New York Times describes as “virtually no” evidence of massive organized voter fraud, despite repeated Republican claims that it is widespread and has cost the party elections. Assistant US attorney Richard G. Frohling of Milwaukee says, “There was nothing that we uncovered that suggested some sort of concerted effort to tilt the election.” Election law expert Richard L. Hasen adds, “What we see is isolated, small-scale activities that often have not shown any kind of criminal intent.” [New York Times, 4/12/2007]

Facing a Congressional investigation into the practice of hiring conservative ideologues for the Justice Department’s civil rights division (CRD—see Fall 2002 and After and Spring 2007), the Department reverses its 2002 decision to give political appointees the power to decide who will be hired as career CRD lawyers. Such hiring now reverts to a committee of career civil servants, as has been the case for decades. Skeptics say that the reversal means little, as the career ranks are now packed with inexperienced conservative ideologues instead of the traditional veteran, highly experienced career lawyers. William Yeomans, a 24-year CRD veteran who accepted a 2005 buyout, says the Bush administration attempted to go farther than previous conservative administrations such as Nixon and Reagan. To make changes permanent, Yeomans notes, one has to entirely reshape the CRD bureaucracy. “Reagan had tried to bring about big changes in civil rights enforcement and to pursue a much more conservative approach, but it didn’t stick,” Yeomans says. “That was the goal here—to leave behind a bureaucracy that approached civil rights the same way the political appointees did.” [Savage, 2007, pp. 300]

Eric Lichtblau. [Source: PBS]Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003 and June 17, 2004), is subpoenaed to testify in the Justice Department’s investigation of the leaks that resulted in the New York Times’s dramatic disclosure of the NSA domestic wiretapping program (see December 15, 2005). Goldsmith had spoken to one of the two Times reporters, Eric Lichtblau, in October 2004, three months after his resignation from the OLC, but lied to Lichtblau, saying he knew nothing of the program. He immediately alerted his former boss, Deputy Attorney General James Comey, of the interview. 'Stunned' By Subpoena - In his September 2007 book The Terror Presidency, Goldsmith will recall being “stunned” at the subpoena, though the two FBI agents who give him the subpoena—in public—say that they don’t suspect him as the source of the leak. Goldsmith later recalls, “What angered me most about the subpoena I received on that wet day in Cambridge was not the expense of lawyers or a possible perjury trap, but rather the fact that it was Alberto Gonzales’s Justice Department that had issued it. As [the two FBI agents] knew, I had spent hundreds of very difficult hours at OLC, in the face of extraordinary White House resistance, trying to clean up the legal mess that then-White House Counsel Gonzales, David Addington, John Yoo, and others had created in designing the foundations of the Terrorist Surveillance Program. It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program….” Supported Surveillance of Terrorism - Goldsmith will continue, “I was not opposed to the leak investigation itself or to vigorous surveillance of terrorists. I agreed with President Bush that the revelations by [James] Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ‘great harm’ to the nation. I hoped the FBI would find and punish the leakers, and I had spent many hours trying to help them do so. I also shared many of the White House’s concerns with the Foreign Intelligence Surveillance Act (FISA), the 1978 domestic wiretapping law that required executive officers, on pain of jail, to get a court warrant before wiretapping suspected enemies in the United States. We were at war with terrorists who were armed with disposable cell phones and encrypted e-mails buried in a global multibillion-communications-per-day system. It seemed crazy to require the commander in chief and his subordinates to get a judge’s permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, e-mail, and ten-dollar cell phones. But I deplored the way the White House went about fixing the problem. ‘We’re one bomb away from getting rid of that obnoxious [FISA] court,’ Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004 (see February 2004). The vice president’s counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on FISA. He and the vice president had abhorred FISA’s intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations. My first experience of this strict control, in fact, had come in a 2003 meeting when Addington angrily denied the NSA inspector general’s request to see a copy of OLC’s legal analysis in support of the Terrorist Surveillance Program. Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing.” Difficult to Justify Legally - Goldsmith will write of the difficulties he found in finding legal justifications for the program. “I first encountered the program in 2003-2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government’s most important counterterrorism tools, was by far the hardest challenge I faced in government. And the whole ordeal could have been avoided.…In 2004, I and others in the Department of Justice had begun the process of working with the FISA court to give the commander in chief much more flexibility in tracking terrorists. From the beginning the administration could have taken these and other steps to ramp up terrorist surveillance in indisputably lawful ways that would have minimized the likelihood of a devastating national security leak. But only if it had been willing to work with the FISA court or Congress. The White House had found it much easier to go it alone, in secret.” [Slate, 9/10/2007]

US Justice Department official Craig Donsanto, the director of the election crimes branch, sends an email to a colleague expressing his incredulity that the US Attorney for Eastern Wisconsin, Steven Biskupic, brought a case against Wisconsin procurement official Georgia Thompson. Thompson was released in April by an appeals court which overturned her conviction and found that Biskupic’s prosecution was based on extraordinarily sketchy evidence (see April 5, 2007). Many critics now believe that the case was politically motivated (see April 7-10, 2007, April 16, 2007, and April 24, 2007). “Bad facts make bad law. How in heck did this case get brought?” Donsanto writes in an email to Justice Department official Raymond Hulser. The press will not report on Donsanto’s consternation until September 2007, when it will be turned over to the House Judiciary Committee, involved in an investigation of the 2006 US Attorney purge (see March 10, 2006, December 7, 2006, and December 20, 2006). Committee chairman John Conyers (D-MI) will say in a statement: “This email demonstrates that even Justice Department insiders thought the Thompson case was seriously flawed. This only underscores the need for further investigation into the administration’s alleged role in politicizing prosecutions.” Biskupic was once named on a list of US Attorneys to be fired (see March 2, 2005), but was later removed from the list. Attorney General Alberto Gonzales will later testify that he does not know why Biskupic was considered for removal or why he was taken off the list. [Associated Press, 9/6/2007]

Attorney General Alberto Gonzales comes under fire from members of the Senate Judiciary Committee regarding the National Security Agency’s domestic warrantless wiretapping program (see December 15, 2005. Testimony from the day before by former deputy attorney general James Comey (see May 15, 2007) showed that White House and Justice Department officials were, and still are, deeply divided over the legality and efficacy of the program. But Gonzales has said repeatedly, both under oath before Congress and in other venues, that there is little debate over the NSA surveillance program, and almost all administration officials are unified in support of the program. In February 2006, he told the committee, “There has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into.” Gonzales’s veracity has come under question before, and many senators are disinclined to believe his new testimony. Committee Democrats point out that Comey’s testimony flatly contradicts Gonzales’s statements from that February session. A letter from Senators Russ Feingold, Charles Schumer, Edward Kennedy, and Richard Durbin asks Gonzales, “In light of Mr. Comey’s testimony yesterday, do you stand by your 2006 Senate and House testimony, or do you wish to revise it?” And some Senate Republicans are now joining Democrats in calling for Gonzales’s removal. Chuck Hagel (R-NE) says, “The American people deserve an attorney general, the chief law enforcement officer of our country, whose honesty and capability are beyond question. Attorney General Gonzales can no longer meet this standard. He has failed this country. He has lost the moral authority to lead.” White House press secretary Tony Snow says of Hagel’s statement, “We disagree, and the president supports the attorney general.” Hagel joins three other Republican senators, John Sununu, Tom Coburn, and presidential candidate John McCain, and House GOP Conference Chairman Adam Putnam, in calling for Gonzales’s firing. Former Senate Intelligence Commitee chairman Pat Roberts (R-KS) says that Gonzales should consider resigning, a stance echoed by fellow Republican senators Arlen Specter and Gordon Smith. [Associated Press, 5/17/2007] Gonzales’s defenders say that his testimony to the committee, while legalistic and narrowly focused, is technically accurate, because the NSA program also involves “data mining” of huge electronic databases containing personal information on millions of US citizens, and that program is not exactly the same as the so-called “Terrorist Surveillance Program,” as the NSA’s wiretapping program is now called by White House officials (see Early 2004). But Feingold disagrees. “I’ve had the opportunity to review the classified matters at issue here, and I believe that his testimony was misleading at best.” [New York Times, 7/29/2007]

Bush officials are battling a lawsuit filed against them by former CIA official Valerie Plame Wilson, according to a report by the Associated Press. Plame Wilson is suing (see July 13, 2006) four Bush administration officials—Vice President Dick Cheney (see July 7-8, 2003), White House political strategist Karl Rove (see July 8, 2003 and 11:00 a.m. July 11, 2003), convicted perjurer Lewis Libby (see March 6, 2007), and former Deputy Secretary of State Richard Armitage (see June 13, 2003)—for deliberately disclosing her identity as a CIA official to the public for political gain. Cheney’s lawyer calls the lawsuit “a fishing expedition” and accuses Plame Wilson of making “fanciful claims.” Plame Wilson says her constitutional rights were violated by the defendants. Armitage’s lawyer says the suit is “principally based on a desire for publicity and book deals.” Plame Wilson’s lawyer counters by saying the case is “about egregious conduct by defendants that ruined a woman’s career.” Rove’s lawyer, Robert Luskin, arguing on behalf of all four defendants, says that none of the officials deliberately disclosed classified information, specifically the information of Plame Wilson’s covert status in the CIA. The defendants’ lawyers claim that they should not be sued personally for actions taken as part of their official duties. And a Justice Department lawyer claims that Cheney should have much the same legal immunity as President Bush. [Associated Press, 5/17/2007] The lawsuit will soon be dismissed (see July 19, 2007).

Fort Huachuca [Source: Army]An FBI advisory is distributed in May 2007 to the Defense Intelligence Agency, the CIA, Customs and Border Protection, and the Justice Department, as well as numerous law enforcement agencies throughout the nation warning that up to 60 Afghan and Iraqi terrorists are to be smuggled into the US through underground tunnels with high-powered weapons to attack an Arizona Army base. The alleged target, Fort Huachuca, is the nation’s largest intelligence-training center. It lies about 20 miles from the Mexican border and has members of all four service branches training in intelligence and secret operations. Security measures are swiftly changed at the base in response to the threat, according to multiple confidential law enforcement documents obtained by The Washington Times. The advisory warns that “a portion of the operatives were in the United States, with the remainder not yet in the United States [and]…the Afghanis and Iraqis shaved their beards so as not to appear to be Middle Easterners.” The FBI report on which the advisory is based points to the involvement of Mexican drug cartels, stating that each operative paid drug lords $20,000 “or the equivalent in weapons” for assistance in smuggling them and their weapons , including anti-tank missiles and surface-to-air missiles, through tunnels along the border into the US. The advisory further warns that a number of the operatives are already in a safe house in Texas and some weapons have already been successfully smuggled into the US. The FBI report is based on Drug Enforcement Administration sources, including Mexican nationals with access to a “sub-source” in the drug cartels. This “sub-source” is allegedly “a member of the Zetas,” the military arm of one of Mexico’s most dangerous drug-trafficking organizations, the Gulf Cartel, who identified the Sinaloa cartel as the organization involved in the plot. However, the advisory states that “this information is of unknown reliability,” while the DEA warns that the Gulf Cartel may be attempting to manipulate the US into acting against their rivals. FBI spokesman Paul Bresson says that the report is based on “raw, uncorroborated information that has not been completely vetted.” A Department of Homeland Security document on the possible attack states “based upon the information provided by the DEA handling agent, the DEA has classified the source as credible [and]…the identity of the sub-source has been established; however, none of the information provided by the sub-source in the past has been corroborated.” [Washington Times, 11/26/2007] The threat later proves to be unfounded. The attack never occurs and FBI spokesman Manuel Johnson, based in Phoenix, admits in November that the warning was the result of bad information. He says “a thorough investigation was conducted and there is no evidence showing that the threat was credible.” [Arizona Daily Star, 11/26/2007]

A federal appeals court rules that “enemy combatant” Ali Saleh Kahlah al-Marri (see December 12, 2001 and February 1, 2007) must be released from military custody. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” writes Judge Diana Gribbon Motz, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution—and the country.” She adds, “We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.” [New York Times, 6/11/2007] Motz continues, “The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.” Military Commissons Act Does Not Apply - The Military Commissions Act (MCA) (see October 17, 2006) does not apply to al-Marri, the court rules. [Bloomberg, 6/11/2007] Motz writes that the MCA does not apply to al-Marri and the court also rules that the government failed to prove its argument that the Authorization for Use of Military Force, enacted by Congress immediately after the 9/11 attacks (see September 14-18, 2001), gives President Bush the power to detain al-Marri as an enemy combatant. [Associated Press, 6/11/2007] Motz also notes that even though the government says the MCA applies to al-Marri’s case, it did not follow its own guidelines under that law. The MCA requires all such detainees to be granted a Combat Status Review Tribunal (CRST) determination; all Guantanamo-based detainees have been given such a procedure. Al-Marri has not. The government did not suggest the procedure for al-Marri until the day it filed its motion to dismiss al-Marri’s case. [Christian Science Monitor, 6/13/2007] The case, al-Marri v. Wright, was filed against Navy Commander S.L. Wright, who oversees the Charleston military prison that houses al-Marri. [Bloomberg, 6/11/2007]Government Arguments Repudiated - The 2-1 decision of the US Court of Appeals in Richmond was written for the majority by Motz. Al-Marri is the only person held on the US mainland as an enemy combatant, and has been held in isolation for four years (see August 8, 2005). The government has alleged since 2002 that al-Marri was an al-Qaeda sleeper agent sent to the US to commit mass murder and disrupt the US banking system (see June 23, 2003). Motz writes that while al-Marri may well be guilty of serious crimes, the government cannot sidestep the US criminal justice system through military detention. The al-Marri ruling apparently does not apply to enemy combatants and other detainees held without charges or legal access at the facility in Guantanamo Bay, Cuba. The dissenting judge, Henry Hudson, writes that President Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States.” Hudson is a Bush appointee. Motz and Judge Roger Gregory, the concurring judge, were appointed by former president Bill Clinton. Motz orders the Pentagon to issue a writ of habeas corpus for al-Marri “within a reasonable period of time.” The Pentagon may release him, hold him as a material witness, or charge him in the civilian court system. Al-Marri “can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely,” she writes, “But military detention of al-Marri must cease.” [New York Times, 6/11/2007; Bloomberg, 6/11/2007]Democracy Vs. 'Police State' - Hafetz says: “We’re pleased the court saw through the government’s stunning position in this case. Had it not, the executive could effectively disappear people by picking up any immigrant in this country, locking them in a military jail, and holding the keys to the courthouse.… This is exactly what separates a country that is democratic and committed to the rule of law from a country that is a police state.” [Christian Science Monitor, 6/13/2007]Justice Department to Challenge Decision - The Justice Department intends to challenge the decision (see June 11, 2007 and Late October-Early November, 2007). The case is expected to reach the Supreme Court, and may help define what authority the government has to indefinitely detain terror suspects and to strip detainees of their right to challenge the legality and conditions of their detention. [Associated Press, 6/11/2007] For the time being, al-Marri will remain in military custody in the Charleston naval brig. [Cincinnati Post, 6/12/2007]

Justice Department spokesman Dean Boyd says the administration is “disappointed” in the decision to void Ali Saleh Kahlah al-Marri’s “enemy combatant” status (see June 11, 2007), and will ask that the full appellate court re-hear the case (see Late October-Early November, 2007). “The president has made clear that he intends to use all available tools at his disposal to protect Americans from further al-Qaeda attack, including the capture and detention of al-Qaeda agents who enter our borders,” Boyd says. [Bloomberg, 6/11/2007; US Newswire, 6/11/2007]

The Electronic Frontier Foundation (EFF) publishes a set of three non-classified documents secured from telecommunications giant AT&T by former AT&T technician and current whistleblower Mark Klein. Klein has used the documents to prove his assertions that AT&T colluded with the National Security Agency to illegally eavesdrop on Americans’ telephone and Internet communications (see December 15-31, 2005 and July 7, 2009). The EFF has sued AT&T for violating its customers’ privacy, and Klein and the documents are key elements of its case (see February 23-28, 2006). After years of opposing their public disclosure and attempting to force their return (see April 6-8, 2006), AT&T acquiesced to the documents’ disclosure earlier this week after the EFF threatened to take the corporation to a federal appeals court. The documents were released in part by Wired News over a year ago against AT&T’s wishes (see May 17, 2006), and PBS also made them public as a part of a Frontline documentary. The Justice Department considered classifying the documents, then rejected the idea (see Late March - April 4, 2006). According to EFF’s Cindy Cohn, AT&T agreed to the disclosure of those portions to escape the embarrassment of arguing that documents available on the Internet for more than a year were secret. Wired’s Ryan Singel writes: “There are no surprises in the AT&T documentation… which consist of a subset of the pages already published by Wired News. They include AT&T wiring diagrams, equipment lists, and task orders that appear to show the company tapping into fiber-optic cables at the point where its backbone network connects to other ISPs at a San Francisco switching office. The documents appear to show the company siphoning off the traffic to a room packed with Internet-monitoring gear.” The EFF also releases a formerly sealed, signed declaration by Klein (see February 23-28, 2006) and a written analysis of the documentation by Internet expert J. Scott Marcus (see March 29, 2006). Marcus’s analysis, which had previously remained largely under court-ordered seal, is “the most interesting” of the releases, Singel writes. Marcus said the AT&T technical configuration allowed the NSA to conduct “surveillance and analysis of Internet content on a massive scale, including both overseas and purely domestic traffic,” and found it probable that AT&T had “15 or 20” secret facilities around the country, not just the few facilities of which Klein was aware. AT&T, with the Justice Department, is trying to prevent EFF’s lawsuit from continuing, insisting that such a trial would expose “state secrets” (see April 28, 2006 and May 13, 2006). Judge Vaughn Walker has already considered and dismissed that claim (see July 20, 2006); AT&T and the government hope an appeals court will find in their favor. Cohn tells Singel she hopes the documents will show the public that their case is based in fact and not speculation, and that the government’s claim of a national security risk is overblown: “It really paints them into a corner, how unreasonable their claims of state secrets are. I’m hoping [the document release] demonstrates we are right and know what we are talking about and that we don’t need much more to win our case. We are much closer than people think.” [Wired News, 6/13/2007]

Most of the lawsuits filed against the US government and against a number of private telecommunications firms alleging illegal wiretapping of US citizens and foreign organizations (see January 31, 2006) are hampered by what legal experts call a “Catch 22” process: lawyers for the Justice Department and for the firms that are alleged to have cooperated with the government in wiretapping citizens and organizations argue that the lawsuits have no merits because the plaintiffs cannot prove that they were direct victims of government surveillance. At the same time, the lawyers argue that the government cannot reveal if any individuals were or were not monitored because the “state secrets privilege” (see March 9, 1953) allows it to withhold information if it might damage national security. Lawyer Shayana Kadidal, who is representing the Center for Constitutional Rights in another lawsuit on behalf of Guantanamo Bay detainees, says, “The government’s line is that if you don’t have evidence of actual surveillance, you lose on standing.” One Lawsuit Has Evidence of Surveillance - But the lawsuit filed by Saudi charitable organization the Al Haramain Islamic Foundation (see February 28, 2006) is different, because the plaintiffs have an actual classified US document that they say proves their allegations. Kadidal says that because of that document, “[T]his is the only one with evidence of actual surveillance” and therefore has a much stronger chance of going forward. The Justice Department will not confirm, or deny, if anyone from Al Haramain was monitored either under the Terrorist Surveillance Program or any other government operation, but plaintiff lawyer Jon Eisenberg tells a judge in July 2007: “We know how many times [my client has] been surveilled. There is nothing left for this court to do except hear oral arguments on the legality of the program.” Extraordinary Measures to Keep Document 'Secure' - Though the Justice Department has repeatedly argued that the Treasury Department document at the heart of the case is harmless and unrelated to NSA surveillance, it is taking extraordinary measures to keep it secure—it is held under strict government seal and remains classified as top secret. Even the plaintiff’s lawyers are no longer allowed to see the document, and have been forced to file briefs with the court based on their memories of the document. [Wired News, 3/5/2007]Expert: Government Cannot Stop Case - The government probably does not have enough to derail the Al Haramain case, according to law professor Curtis Bradley. In August 2007, Bradley observes, “The biggest obstacle this litigation has faced is the problem showing someone was actually subjected to surveillance,” but the lawsuit “has a very good chance to proceed farther than the other cases because it’s impossible for the government to erase [the lawyers’] memories of the document.” [Associated Press, 8/5/2007]

Alberto Gonzales testifies before Congress. [Source: Associated Press]Attorney General Alberto Gonzales lied to Congress during Congressional hearings over the reauthorization of the USA Patriot Act (see March 9, 2006). In testimony before Congress, Gonzales asserted that he knew nothing of any abuses of National Security Letters (NSLs), documents that require employers, librarians, and others to turn over information on their employees and patrons to the government, and further require that those served with NSLs remain silent about them and the information being given over. But internal FBI documents made available on this day reveal that Gonzales indeed had been briefed about such abuses. (The Justice Department is fighting two court cases from plaintiffs seeking to halt the indiscriminate and allegedly unconstitutional use of NSLs to demand information about US citizens that, by law, should remain private.) George Christian, a Connecticut librarian who fought the FBI over its demand for information about his library patrons (see July 13, 2005 and April 11, 2007), says, “Having experienced first-hand the impact of the government’s abuse of surveillance powers, it is particularly disheartening to learn more and more about the deceit surrounding that abuse. I and my colleagues were fortunate enough to have the gag order against us lifted, but thousands more believed to have received national security letters are not so lucky, and must suffer the injustice in silence. It’s bad enough that these abuses occur, but salt is added to the wound when the top law enforcement agent in the country knows about the abuses, does nothing to correct them, and then plays ignorant when confronted with them.” [American Civil Liberties Union, 7/10/2007]

Former KBR subcontract administrator Anthony J. Martin pleads guilty to violating the Anti-Kickback Act. Martin admits to taking bribes from a Kuwaiti company in 2003 in return for granting a $4.67 million contract to the firm. Although the Justice Department does not identify the Kuwaiti firm, other court documents subsequently name the firm as First Kuwaiti General Trading & Contracting (see September 21, 2007). Martin worked from February 2003 through February 2004 in Kuwait, where he solicited bids from prospective subcontractors under KBR’s largest contract with the US Army, the Logistics Civil Augmentation Program (LOGCAP III). Martin’s conviction is part of a much larger investigation mounted by the Justice Department in Rock Island, Illinois, investigating corporate fraud in the provision of logistics to the US military deployed in Iraq and Afghanistan (see October 2006 and Beyond). Martin has admitted to accepting $10,000 from the managing partner of First Kuwaiti, Lebanese businessman Wadih Al Absi. He was to receive almost $200,000 more, but testified in his plea bargain agreement that he felt guilty about taking the $10,000 and subsequently refused to take any more. Martin faces up to ten years in prison and possible restitution. [PR Newswire, 7/13/2007; Associated Press, 9/21/2007]

Justice Department official Patrick Philbin testifies in a closed session of the House Intelligence Committee on the subject of interrogation tactics. Philbin testifies that each of the 24 approved interrogation tactics used by US personnel to interrogate terrorist suspects are “plainly lawful.” He notes that laws such as the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice define, to an extent, what is and is not torture, and prohibit excessive interrogation methods that might come under that rubric. He also notes that the US is a signatory to the Convention Against Torture (see October 21, 1994), which defines torture broadly as the intentional infliction of “severe pain or suffering” by anyone acting in an official capacity. He insists the US has done nothing to violate this treaty, nor the War Crimes Act, the Geneva Conventions, or Fifth and the Eighth Amendments to the US Constitution. Although terrorist organizations such as al-Qaeda and “extragovernmental” organizations such as the Taliban do not fall under the protection of the Geneva Conventions, Philbin argues that the US continues to follow its guidelines in its treatment of prisoners from those groups “to the extent consistent with military necessity…” [House Intelligence Committee, 7/14/2007 ] However, in 2004, a classified report by the CIA’s Inspector General concluded that some of the interrogation techniques used by the CIA probably did violate the Convention Against Torture (see May 7, 2004).

Steven Bradbury, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo on what a new interpretation of the Geneva Conventions’ Common Article 3 means for the CIA’s “enhanced interrogation program.” The Bradbury memo, released after months of debate among Bush officials regarding the ramifications of the recent Supreme Court decision extending Geneva protections to enemy combatants in US custody (see June 30, 2006), new legislation following the Court’s decision (see October 17, 2006), and an executive order on interrogations (see July 20, 2007), spells out what interrogation practices the CIA can use. The memo’s existence will not become known until after the 2009 release of four Justice Department torture memos (see April 16, 2009). Michael Ratner of the Center for Constitutional Rights will say upon learning of the memo, “The CIA still seems to want to get authority to interrogate people outside of what would be found to be a violation of the Geneva Conventions and the law.” Ratner will add that the memo raises questions about why the CIA felt it needed expanded authorities for interrogations. “What we don’t know is whether, after Hamdan, that 2007 memo modifies what the CIA is able to do in interrogation techniques,” he will say. “But what’s more interesting is why the CIA thinks it needs to use those interrogation techniques. Who are they interrogating in 2007? Who are they torturing in 2007? Is that they’re nervous about going beyond what OLC has said? These are secret-site people. Who are they? What happened to them?” [Washington Independent, 4/21/2009]

Senator John D. Rockefeller (D-WV) disputes Attorney General Alberto Gonzales’s characterization of the March 10, 2004 Congressional briefing (see March 10, 2004) regarding the NSA’s warrantless wiretapping program (see Early 2002) as about other surveillance programs, and not the NSA program now referred to as the Terrorist Surveillance Program (TSP). Gonzales testified earlier today (see July 24, 2007) that the briefing did not cover the NSA program, but Rockefeller says that it did. Rockefeller was at that meeting, then serving as the ranking Democrat on the Senate Intelligence Committee. Rockefeller confirms that the Congressional leaders at the briefing, known colloquially as the “Gang of Eight,” had no idea about the tremendous dispute over the legality of the wiretapping program. He also says, again in contradiction to Gonzales’s testimony, that they were never asked to draft legislation that would make the wiretapping program legal. As to the topic of discussion, Rockefeller says, “As far as I’m concerned, there’s only one” intelligence program. Rockefeller says at the end of the briefing, most of the lawmakers were still unclear about the nature and extent of the program, nor were they clear as to the White House’s plans for the program. “They were not telling us what was really going on,” Rockefeller says. Asked if he believed that Gonzales had purposely misled the Judiciary Committee today, Rockefeller replies, “I would have to say yes.” [Politico (.com}, 7/24/2007] He calls Gonzales’s testimony “untruthful.” [New York Times, 7/24/2007]Other Democrats Bolster Rockefeller's Recollections - Other Democrats present at the briefing add their voices to Rockefeller’s. Jane Harman (D-CA), then the ranking member of the House Intelligence Committee, says Gonzales is inaccurate in his characterizations of the briefing, and that the program under discussion could have only been the NSA wiretapping operation. “That doesn’t make any sense to me,” Harman says. The NSA program was “the only program we were ever briefed about.” Harman and Rockefeller both say that this and later briefings about the program were quite limited in scope. “We were briefed on the operational details—period—not the legal underpinnings,” Harman says. [Roll Call, 7/25/2007] Harman adds that Gonzales was apparently being deliberately deceptive in trying to characterize the program as something other than the NSA operation. “The program had different parts, but there was only one program,” she says. Gonzales was, she says, “selectively declassifying information to defend his own conduct,” an action Harman calls improper. [New York Times, 7/24/2007] Harman says that Gonzales should not even have revealed that there had been such a classified briefing, especially revealing such a meeting in order to defend his own contradictory testimonies. “He doesn’t have the authority to do that,” she says. [Roll Call, 7/25/2007]

New documents contradict Attorney General Alberto Gonzales’s recent sworn testimony before the Senate Judiciary Committee, indicating that Gonzales may have committed perjury before the panel. Lied About Congressional Briefing - In testimony before the committee (see July 24, 2007), Gonzales told senators that a March 10, 2004 emergency briefing with the so-called “Gang of Eight,” comprised of the Republican and Democratic leaders of the two houses of Congress and the ranking members of both houses’ intelligence committees (see March 10, 2004), did not concern the controversial NSA warrantless domestic surveillance program, but instead was about other surveillance programs which he was not at liberty to discuss. But according to a four-page memo from the national intelligence director’s office, that briefing was indeed about the so-called “Terrorist Surveillance Program,” or TSP, as it is now being called by White House officials and some lawmakers. The memo is dated May 17, 2006, and addressed to then-Speaker of the House Dennis Hastert. It details “the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program,” wrote then-Director of National Intelligence John Negroponte. The DNI memo provides further evidence that Gonzales has not been truthful in his dealings with Congress, and gives further impetus to a possible perjury investigation by the Senate. So far, both Gonzales and Justice Department spokesmen have stood by his testimony. The nature of the March 2004 briefing is important because on that date, Gonzales and then-White House chief of staff Andrew Card tried to pressure then-Attorney General John Ashcroft, while Ashcroft was recuperating from emergency surgery in the hospital, to reauthorize the domestic wiretapping program over the objections of acting Attorney General James Comey, who had refused to sign off on the program due to its apparent illegality (see March 10-12, 2004). Comey’s own testimony before the Senate has already strongly contradicted Gonzales’s earlier testimonies and statements (see May 15, 2007). The entire imbroglio illustrates just how far from legality the NSA wiretapping program may be, and the controversy within the Justice Department it has produced. Gonzales flatly denied that the March 2004 briefing was about the NSA program, telling the panel, “The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program.” Grilled By Senators - Senator Charles Schumer (D-NY) pressed Gonzales for clarification: “Not the TSP? Come on. If you say it’s about other, that implies not. Now say it or not.” Gonzales replied, “It was not. It was about other intelligence activities.” Today, with the DNI documents in hand, Schumer says, “It seemed clear to just about everyone on the committee that the attorney general was deceiving us when he said the dissent was about other intelligence activities and this memo is even more evidence that helps confirm our suspicions.” Other senators agree that Gonzales is not telling the truth. “There’s a discrepancy here in sworn testimony,” says committee chairman Patrick Leahy (D-VT). “We’re going to have to ask who’s telling the truth, who’s not.” And committee Democrats are not the only ones who find Gonzales’s testimony hard to swallow. Arlen Specter (R-PA) told Gonzales yesterday, “I do not find your testimony credible, candidly.” The “Gang of Eight” members disagree about the content of the March briefing. Democrats Nancy Pelosi, Jay Rockefeller, and Tom Daschle all say Gonzales’s testimony is inaccurate, with Rockefeller calling Gonzales’s testimony “untruthful.” But former House Intelligence chairman Porter Goss and former Senate Majority Leader Bill Frist, both Republicans, refuse to directly dispute Gonzales’s claims. [Associated Press, 7/25/2007]Mueller Will Contradict Gonzales - Three weeks later, notes from FBI director Robert Mueller, also present at the Ashcroft meeting, further contradict Gonzales’s testimony (see August 16, 2007).

Legal analyst Jeffrey Toobin says he is “shocked” and “appalled” by the apparent perjury of Attorney General Alberto Gonzales to Congress. Gonzales testified (see July 24, 2007) under oath about a 2004 visit to a hospitalized John Ashcroft by himself and then-White House chief of staff Andrew Card to pressure Ashcroft, then the attorney general, to overrule the acting attorney general, James Comey, and reauthorize the National Security Agency’s domestic wiretapping program (see December 15, 2005). Toobin says of Gonzales’s apparent perjury, “You know, it’s our job to be jaded and not to be shocked. But I’m shocked. I mean, this is such an appalling set of circumstances. And the Justice Department is full of the most honorable, decent, skilled lawyers in the country. And to be led by someone who is so repudiated by members of both parties is, frankly, just shocking.” Toobin explains the nature of Gonzales’s alleged lies: when Gonzales was first asked, under oath, if there was any dispute among Justice Department and White House officials over the NSA program, he denied any such debates had taken place (see May 16, 2007). But months later, Comey testified (see May 15, 2007) that there was so much dissension in the Justice Department concerning the program that the attempt to pressure the ailing Ashcroft to reauthorize the program brought the dissent to a head: Comey, Ashcroft, FBI director Robert Mueller, and other officials threatened to resign if the program was not brought into line. Comey flatly contradicted Gonzales’s version of events. (Weeks from now, Mueller will release five pages of his own notes from that 2004 hospital meeting that will confirm Comey’s veracity; see August 16, 2007.) After Comey’s testimony called Gonzales’s truthfulness into question, Gonzales changed his story. He told his Congressional questioners that there were in fact two different programs that were being discussed at Ashcroft’s bedside, one controversial and the other not. Mueller has also testified that there is only one program causing such dispute: the NSA warrantless surveillance program. Toobin says, “So, this week, what happened was, the Senators said, well, what do you mean? How could you say it was uncontroversial, when there was this gigantic controversy? And Gonzales said, oh, no, no, no, we’re talking about two different programs. One was controversial. One wasn’t. But Mueller said today it was all just one program, and Gonzales, by implication, is not telling the truth.” The White House contends that the apparent contradiction of Gonzales’s varying statements is explained by the fact that all such surveillance programs are so highly classified that Gonzales cannot go into enough detail about the various programs to explain his “confusing” testimony. But Toobin disputes that explanation: “Mueller didn’t seem confused. No one seems confused, except Alberto Gonzales.” [CNN, 7/26/2007; Raw Story, 7/27/2007]

Four Democratic members of the Senate Judiciary Committee request that Attorney General Alberto Gonzales be investigated for perjury in light of his contradictory testimony to the Senate Judiciary Committee regarding the NSA warrantless wiretapping program (see July 24, 2007). “It has become apparent that the attorney general has provided at a minimum half-truths and misleading statements,” the four senators—Charles Schumer (D-NY), Dianne Feinstein (D-CA), Russ Feingold (D-WI), and Sheldon Whitehouse (D-RI)—write in a letter to Solicitor General Paul Clement calling for a special counsel to investigate. “We ask that you immediately appoint an independent special counsel from outside the Department of Justice to determine whether Attorney General Gonzales may have misled Congress or perjured himself in testimony before Congress.” [Senate Judiciary Committee, 7/26/2007] (The letter is sent to Clement because he would be the one to decide whether to appoint a special counsel. Gonzales and outgoing Deputy Attorney General Paul McNulty have recused themselves from any such investigation due to their own involvement in the incidents. The next person in line at the Justice Department, acting Associate Attorney General William Mercer, lacks the authority to make such a decision.) [CBS News, 7/26/2007] Senate Majority Leader Harry Reid (D-NV), who did not sign the letter but supports the request for a special counsel, says, “I’m convinced that he’s not telling the truth.” The call for a special counsel follows earlier testimony by FBI director Robert Mueller that flatly contradicted Gonzales’s testimony (see July 26, 2007), though White House spokespersons denied that Mueller contradicted Gonzales. White House Denies Perjury Allegation - White House press secretary Tony Snow says the apparent contradictions stem from Gonzales’s and Mueller’s restrictions in testifying in public about the classified program. “The FBI director didn’t contradict the testimony,” Snow says. “It is inappropriate and unfair to ask people to testify in public settings about highly classified programs. The president, meanwhile, maintains full confidence in the attorney general.” And Justice Department spokesman Brian Roehrkasse insists that Gonzales was referring during his testimony to a separate intelligence operation that has not yet been revealed, though numerous other sources have contradicted that position (see July 25, 2007). “The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified,” Roehrkasse says. Further Instances of Misleading Testimony - Senate Democrats also assert that Gonzales has repeatedly given false and misleading testimony about the US attorney firings, has been part of a White House program to encourage White House aides to ignore Congressional subpoenas, has falsely claimed that he has never discussed the firings with other witnesses (including White House aide Monica Goodling, who recently testified that she discussed the firings with Gonzales), and other instances of deception. Schumer says, “There’s no wiggle room. Those are not misleading [statements]. Those are deceiving. Those are lying.” [Associated Press, 7/26/2007] Schumer says at a press conference later in the day, “The attorney general took an oath to tell the truth, the whole truth and nothing but the truth. Instead, he tells the half-truth, the partial truth and everything but the truth. And he does it not once, and not twice, but over and over and over again. His instinct is not to tell the truth but to dissemble and deceive.…I have not seen anything like it from a witness in the 27 years that I have been in Congress.” Feingold adds, “Based on what we know and the evidence about what happened in terms of the gang of eight and what he said in that sworn testimony in the committee, I believe it’s perjury.…Not just misleading—perjury.” [US Senate, 7/26/2007] Judiciary Committee chairman Patrick Leahy (D-VT) does not sign the letter asking for the investigation, and has instead sent his own letter to Gonzales giving him a week to resolve the inconsistencies in his testimony. “The burden is on him to clear up the contradictions,” Leahy says. Leahy is joined by ranking Republican committee member Arlen Specter (R-PA), who says the call for a special counsel is premature. Specter accuses Schumer of “throwing down the gauntlet and making a story in tomorrow’s newspapers.” [Associated Press, 7/26/2007] Specter has suggested that Gonzales resign instead of continuing as attorney general. [USA Today, 7/26/2007]'Linguistic Parsing' - Justice Department aides acknowledge that Gonzales’s self-contradictory testimonies have caused confusion because of his “linguistic parsing.” [New York Times, 7/26/2007]

FBI agents raid the home of former Justice Department prosecutor Thomas Tamm, who is suspected of leaking information to the New York Times regarding the Bush administration’s warrantless wiretapping program (see Spring 2004 and December 15, 2005). Tamm previously worked in the Justice Department’s Office of Intelligence Policy and Review (OIPR), which oversees surveillance of terrorist and espionage suspects. The FBI agents seize Tamm’s computer as well as those of his three children and a store of personal files. They also take some of his books (including one on famed Watergate whistleblower “Deep Throat” (see May 31, 2005), and even the family’s Christmas card list. Tamm is not home when the raid is staged, so the agents sit his wife and children around the kitchen table and grill them about Tamm’s activities. His oldest son, Terry, will later recall: “They asked me questions like ‘Are there any secret rooms or compartments in the house’? Or did we have a safe? They asked us if any New York Times reporters had been to the house. We had no idea why any of this was happening.” The raid is part of a leak probe ordered by President Bush (see December 30, 2005). James X. Dempsey of the Center for Democracy and Technology calls the decision to stage the raid “amazing,” and says it shows the administration’s misplaced priorities: using FBI agents to track down leakers instead of processing intel warrants to close the gaps. [Newsweek, 8/2007; Newsweek, 12/22/2008] In late 2008, Tamm will reveal to Newsweek that he is one source for the Times articles (see December 22, 2008). At the time of the raid, his family has no idea that he knows anything about the wiretapping program, or that he has spoken to reporters. [Newsweek, 12/22/2008]

Congressional Democrats attempt to short-circuit the Protect America Act (see August 5, 2007) currently under debate. They introduce their own bill, the Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act, that would address the administration’s concerns that the Foreign Intelligence Surveillance Act imposed unwieldy limitations on the NSA’s ability to electronically monitor foreign communications that were transmitted through communications networks inside the US. The Democrats’ bill redefines “electronic surveillance” to allow the NSA to monitor such communications without a FISA warrant if it “reasonably believes” the targets of those communications to be outside the US. This would give the NSA new surveillance powers, so the Democrats’ bill provides for oversight by the FISA Court, audits by the Justice Department’s Inspector General, and restrictions on domestic surveillance. However, the Bush administration does not want the bill to become law. President Bush announces that he opposes the bill, and threatens to hold Congress in session past its August adjournment date until he can get the Protect America Act passed. The Democrats’ bill dies before ever coming up for a full vote in Congress. [US House of Representatives, 8/3/2007 ; Slate, 8/6/2007]

Ryan Singel. [Source: Wired]According to Ryan Singel of Wired, the new Protect America Act (PAA—see August 5, 2007) gives the Bush administration “the power to order the nation’s communication service providers—which range from Gmail, AOL IM, Twitter, Skype, traditional phone companies, ISPs, internet backbone providers, Federal Express, and social networks—to create possibly permanent spying outposts for the federal government.” He adds: “These outposts need only to have a ‘significant’ purpose of spying on foreigners, would be nearly immune to challenge by lawsuit, and have no court supervision over their extent or implementation. Abuses of the outposts will be monitored only by the Justice Department, which has already been found to have underreported abuses of other surveillance powers to Congress.” In addition, Singel says the PAA redefines any monitoring of US citizens’ telephone and Internet communications “reasonably believed” to be outside the country as not surveillance, allows telecommunications firms to target both foreign and domestic parties for surveillance, and forces those firms to give assistance in secret, without informing Congress or the targeted parties. [Wired News, 8/6/2007]

Ron Wyden. [Source: Public domain / US Congress]Senator Ron Wyden (D-OR) writes to the Justice Department’s acting head of the Office of Legal Counsel (OLC), Steven Bradbury, asking for clarification of the Bush administration’s stance on the Geneva Conventions as they apply to the interrogation of detainees. Wyden notes that President Bush has recently affirmed that the US would observe the conventions’ standards on humane treatment of all prisoners, and asks precisely how the OLC defines the concept of “humane treatment.” Wyden wants to know what circumstances definitions of that term might vary under, and asks the same questions of the term “cruel, inhuman, and degrading treatment.” The principal deputy assistant attorney general, Brian Benczkowski, will answer Wyden’s letter on September 27, 2007 (see September 27, 2007). [US Senate, 8/8/2007 ]

Notes made by FBI Director Robert Mueller about the 2004 attempt by then-White House counsel Alberto Gonzales and then-chief of staff Andrew Card to pressure ailing Attorney General John Ashcroft to reauthorize the secret NSA warrantless wiretapping program contradict Gonzales’s July testimony before the Senate Judiciary Committee about the events of that evening (see March 10-12, 2004 and July 24, 2007). Gonzales’s testimony was already at odds with previous testimony by former deputy attorney general James Comey (see May 15, 2007). Gonzales testified that Ashcroft was lucid and articulate, even though Ashcroft had had emergency surgery just hours before (see March 10-12, 2004), and he and Card had merely gone to Ashcroft’s hospital room to inform Ashcroft of Comey’s refusal to authorize the program (see May 15, 2007). But Mueller’s notes of the impromptu hospital room meeting, turned over to the House Judiciary Committee today, portray Ashcroft as “feeble,” “barely articulate,” and “stressed” during and after the confrontation with Gonzales and Card. [US Department of Justice, 8/16/2007; Washington Post, 8/17/2007; Associated Press, 8/17/2007] Mueller wrote that Ashcroft was “in no condition to see them, much less make decision [sic] to authorize continuation of the program.” Mueller’s notes confirm Comey’s testimony that Comey requested Mueller’s presence at the hospital to “witness” Ashcroft’s condition. [National Journal, 8/16/2007]Mueller Directed FBI Agents to Protect Comey - The notes, five pages from Mueller’s daily log, also confirm Comey’s contention that Mueller had directed FBI agents providing security for Ashcroft at the hospital to ensure that Card and Gonzales not be allowed to throw Comey out of the meeting. Gonzales testified that he had no knowledge of such a directive. Mueller’s notes also confirm Comey’s testimony, which held that Ashcroft had refused to overrule Comey’s decision because he was too sick to resume his authority as Attorney General; Ashcroft had delegated that authority to Comey for the duration of his hospital stay. Gonzales replaced Ashcroft as attorney general for President Bush’s second term. Representative John Conyers (D-MI), chairman of the House Judiciary Committee, says that Mueller’s notes “confirm an attempt to goad a sick and heavily medicated Ashcroft to approve the warrantless surveillance program. Particularly disconcerting is the new revelation that the White House sought Mr. Ashcroft’s authorization for the surveillance program, yet refused to let him seek the advice he needed on the program.” (Ashcroft had previously complained that the White House’s insistence on absolute secrecy for the program had precluded him from receiving legal advice from his senior staffers, who were not allowed to know about the program.) Notes Contradict Other Testimony - Mueller’s notes also contradict later Senate testimony by Gonzales, which he later “clarified,” that held that there was no specific dispute among White House officials about the domestic surveillance program, but that there was merely a difference of opinion about “other intelligence activities.” [New York Times, 8/16/2007; Washington Post, 8/17/2007] In his earlier Congressional testimony (see July 26, 2007), which came the day after Gonzales’s testimony, Mueller said he spoke with Ashcroft shortly after Gonzales left the hospital, and Ashcroft told him the meeting dealt with “an NSA program that has been much discussed….” [CNN, 7/25/2007] Mueller did not go into nearly as much detail during that session, declining to give particulars of the meeting in Ashcroft’s hospital room and merely describing the visit as “out of the ordinary.” [House Judiciary Committee, 7/26/2007; New York Times, 8/16/2007] Mueller’s notes show that White House and Justice Department officials were often at odds over the NSA program, which Bush has lately taken to call the “Terrorist Surveillance Program.” Other information in the notes, including details of several high-level meetings concerning the NSA program before and after the hospital meeting, are redacted. Call for Inquiry - In light of Mueller’s notes, Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, has asked the Justice Department’s inspector general, Glenn Fine, to investigate whether Gonzales has misled lawmakers—in essence, committed perjury—in his testimony about the NSA program as well as in other testimony, particularly statements related to last year’s controversial firings of nine US attorneys. Other Democrats have asked for a full perjury investigation (see July 26, 2007). [Washington Post, 8/17/2007] Leahy writes to Fine, “Consistent with your jurisdiction, please do not limit your inquiry to whether or not the attorney general has committed any criminal violations. Rather, I ask that you look into whether the attorney general, in the course of his testimony, engaged in any misconduct, engaged in conduct inappropriate for a Cabinet officer and the nation’s chief law enforcement officer, or violated any duty.” [Associated Press, 8/17/2007]

The Office of the Vice President (OVP) says it is not part of the Executive Office of the President. It had previously argued it was not part of the executive branch at all (see 2003 and June 21, 2007), but had abandoned that claim two months before (see June 26, 2007). In a letter from Vice President Cheney’s counsel Shannen Coffin to Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, Coffin asks for more time to produce documents related to the NSA’s domestic surveillance program. In her letter, Coffin writes that the “committee authorized the chairman to issue subpoenas to the Executive Office of the President and Department of Justice, but did not authorize issuance of a subpoena to the Office of the Vice President.” [Office of the Vice President, 8/20/2007 ] Leahy responds, “The administration’s response today also claims that the Office of the Vice President is not part of the Executive Office of the President. That is wrong. Both the United States Code and even the White House’s own web site say so—at least it did as recently as this morning.” [US Senate, 8/20/2007] The National Journal’s Jane Roh writes, “Any constitutional lawyer worth his or her salt will tell you this line of argument ends badly for Cheney.” [National Journal, 8/21/2007]

President Bush has abused his prerogative to issue “signing statements” that state the White House’s interpretion of Congressionally passed laws (see Early 2005), according to former White House counsel John Dean and constitutional law professor Laurence Tribe. History - Signing statements have no weight in law, but presidents have traditionally used them to state their belief that a particular legislative provision is unconstitutional, and on rare occasion (before the current president) to state their refusal to enforce that provision. Since Jimmy Carter’s administration, various Justice Department officials have said presidents can refuse to enforce a particular provision of signed, legally binding legislation. [Dean, 2007, pp. 112-116] A group of young conservative lawyers in the Reagan administration decided that signing statements were a powerful, and stealthy, way to expand presidential power. Dean: Bush's Use of Signing Statements 'Extraordinary' - However, Dean says that Bush has used signing statements far more extensively than any president before him. Dean notes that, while presidential signing statements themselves are not illegal or inherently wrong, “[i]t is Bush’s abuse of them that is extraordinary.” Dean writes there has been no concerted effort to find out if Bush is just saying he will not comply with the inordinate number of legislative provisions he has objected to, or if he is refusing to comply with them in practice. If the latter is the case, Dean writes, “he should be impeached immediately… because it would be an extraordinary breach of his oath” of office. Tribe: Bush's Signing Statements 'Bizarre,' 'Reckless' - Dean cites Tribe, who said in 2006, “[W]hat is new and distressing [about Bush’s use of signing statements] is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views—and the suspicion that the president either intends actually to act on them with some regularity, often in a manner that won’t be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches—declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.” [Dean, 2007, pp. 112-116; Joyce Green, 2007] Political science professor Christopher Kelley agrees. Kelley, who studied the Bush administration’s use of signing statements, says: “What we haven’t seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House. That is what is staggering. The numbers are well out of the norm from any previous administration.” Signing Statements Supplanting Vetoes - In another disturbing trend, according to author and reporter Charlie Savage, Bush is using signing statements to supplant the traditional presidential veto. By mid-2007, Bush had vetoed just two bills. In contrast, Bush’s predecessor, Bill Clinton, vetoed 37 bills. George H. W. Bush vetoed 44, and Ronald Reagan vetoed 78. Legal experts studying Bush’s signing statements conclude that Bush and his legal team are using signing statements to function almost as line-item vetoes, a power the president does not have. The Supreme Court ruled in 1998 that the Founding Fathers wanted the president to either accept a Congressional bill or reject it entirely, and if Congress overrode the veto, then the president had no other recourse than to follow the new law. But now, Savage writes, “the Bush-Cheney administration had figured out that if a president signed a bill and then instructed the government to consider selected provisions null (see December 30, 2005), he could accomplish much the same thing. Moreover, it was an absolute power because, unlike when there is a regular veto, Congress had no opportunity to override his legal judgments.” [Savage, 2007, pp. 230-231]

Jack Goldsmith’s ‘The Terror Presidency.’ [Source: Barnes and Noble.com]Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC) from October 2003 through June 2004, is publishing a new book, The Terror Presidency, in which he details many of the controversies in which he found himself mired during his brief and stormy tenure. Goldsmith was viewed, along with his friend and fellow law professor John Yoo, as two of the department’s newest and brightest conservative stars; the two were called the “New Sovereigntists” by the prestigious political journal Foreign Affairs. But instead of adding his voice to others in the Bush administration who supported the expanding powers of the presidency at the cost of civil liberties, Goldsmith found himself at odds with Yoo, White House counsel Alberto Gonzales, and other White House and Justice Department officials. The OLC advises the president on the limits of executive power (and finds legal justifications for its actions as well), and Goldsmith became embattled in disputes with the White House over the Bush administration’s systematic attempts to push the boundaries of executive power almost from the onset of his term as OLC chief, especially in light of the administration’s responses to 9/11 and the threat of Islamist terrorism (see October 6, 2003). Goldsmith disagreed with the White House over issues surrounding the use of torture against terrorist suspects (see December 2003-June 2004), the NSA’s secret domestic wiretapping program (see June 17, 2004), the extra-constitutional detention and trial of enemy combatants (see January-June 2004), and other issues. 'Behind-the-Scenes Revolt' - After nine contentious months leading a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith resigned. He says of his mindset at the end of his term, “I was disgusted with the whole process and fed up and exhausted.” Goldsmith chose to remain quiet about his resignation, and as a result, his silence was widely misinterpreted by media, legal, and administration observers. Some even felt that Goldsmith should be investigated for his supposed role in drafting the torture memos he had actually opposed. “It was a nightmare,” Goldsmith recalls. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007]Not a Whistleblower - Goldsmith, who now teaches law at Harvard, does not regard himself as a whistleblower. “This book is not about whistle blowing,” he says. “It’s about trying to explain to the public the enormous pressures and tensions inside the executive branch to keep Americans safe and about how that pressure bumps into the wall, and about the difficulties that everyone in the administration has and the pressure to do everything possible to keep Americans safe, and the intense pressure to comply with the law. And it’s an attempt to give a fair-minded and deeply sympathetic description of that tension, and I actually think there’s a structural problem in the presidency because of this, and I’m trying to explain the pressure the administration is under and why it did the things it did, and why it did things correctly in some circumstances and why it made mistakes.” He says he has learned some difficult lessons from his tenure in Washington: “I came away from my time in government thinking, as many people do, that there’s too much secrecy. Both too much secrecy inside the executive branch and between the executive branch and Congress. There’s obviously a trade-off and it’s hard to know when to draw the line. If issues and debates are too tightly drawn, and there’s too much secrecy, then two pathologies occur and we saw them occur in this administration. One is you don’t have the wide-range debate needed to help you avoid errors. Two is, it’s pretty well known that excessive secrecy leaves other people in the government to question what is going on when they get wind of it, and to leak it.” [Newsweek, 9/8/2007]Bush, Administration Officials Going Too Far in Placing Politics Above Law - Goldsmith believes that Bush and his officials are their own worst enemies in their attempts to expand presidential power. Goldsmith, like his heroes Abraham Lincoln and Franklin D. Roosevelt, regards the law as secondary to political leadership. Bush’s indifference and even contempt for the political process has weakened his abilities as a wartime leader, in direct contrast to Lincoln and Roosevelt. “I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making,” Goldsmith says. Since Bush is not a lawyer, “[i]t’s hard to know how he would know.” Bush’s refusal to work with Congress is in direct contradiction to Lincoln’s and Roosevelt’s approaches, and that refusal has damaged his administration’s ability to combat terrorism and achieve its agenda. Goldsmith writes that Bush has willfully ignored the axiom that the strongest presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith writes. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.” While Goldsmith agrees with the administration that the terrorist threat is extremely serious, and that the US must counter it aggressively, he quotes his conservative Harvard colleague Charles Fried that Bush “badly overplayed a winning hand.” Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, he says, Bush weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it. The Bush administration has borrowed its power against future presidents.” [New York Times Magazine, 9/9/2007]Adding to Presidential Power - He adds, “Basically, the administration has the conception of executive power that suggests they clearly have a public agenda item of wanting to leave the presidency more powerful than they found it. Vice President Cheney was in the Ford White House at the dawn of the resurgent Congress after Watergate and Vietnam and he believed then that the 1970s restrictions put on the executive branch by Congress related to war and intelligence harm the presidency. So one of their agenda items before 9/11 was to keep the power of presidency and expand the power of the presidency to put it back to its rightful place.… They’ve certainly lost a lot of trust of Congress. And the Supreme Court really, I think, cut back on certain presidential prerogatives.… Future presidencies will face a culture of distrust and worry, I believe, because of the actions taken by the Bush administration. A lot of it was unnecessary.… So when you have those pressures [to battle terrorism and keep the nation safe] and then you run into laws that don’t allow you to do what you need to do, I think the prescription is that going it alone unilaterally with executive power is not as good as getting the other institutions on board through consensus and consultation.” [Newsweek, 9/8/2007]

The Justice Department’s Brian Benczkowski answers Senator Ron Wyden (D-OR)‘s request for clarification of the terms “humane treatment” and “cruel, inhuman, and degrading treatment” as it applies to suspected terrorists in US custody. Benczkowski writes that the government uses the Military Commissions Act (MCA) (see October 17, 2006) and a recent executive order, Order #13440 (authorizing the continued use of harsh interrogation methods—see July 20, 2007) to determine how the US will comply with the Geneva Conventions. Benczkowski writes that Order 13440 and the Army Field Manual, among other guidelines, ensure that any interrogations carried out by US personnel comply with Geneva. Geneva Does Not Clearly Define 'Humane Treatment' - He goes on to note that the term “humane treatment” is not directly defined by Geneva, but “rather provides content by enumerating the specific prohibitions that would contravene that standard.” Common Article 3, the statute in the Conventions that specifically addresses the treatment of prisoners, expressly prohibits “violence” including “murder of all kinds, mutilation, cruel treatment and torture.” It also prohibits “outrages upon personal dignity,” including “humiliating and degrading treatment.” Benczkowski writes that there is no accepted international standard as to what is defined as “humane treatment” and what is not, outside of the basic provisions of food, water, clothing, shelter, and protection from extremes of temperature. Given this standard, he writes, the Bush administration does ensure that “all detainees within the CIA program shall be treated humanely.” Defined by Circumstances - He goes on to note that Geneva seems to grant some leeway for interpretation as to what complies with its standards, particularly in the area of “outrages upon personal dignity.” Citing a previous international tribunal, he writes, “To rise to the level of an outrage, the conduct must be ‘animated by contempt for the human dignity of another person’ and it must be so deplorable that the reasonable observer would recognize it as something that must be universally condemned.” None of the methods used by US interrogators contravenes any of these standards as the Justice Department interprets them, Benczkowski concludes. As for the question of “cruel, inhuman and degrading treatment,” or as he abbreviates it, “CIDT,” Benczkowski writes that such treatment is prohibited by the Fifth, Eighth, and Fourteenth Amendments to the US Constitution. However, circumstances determine what is and is not CIDT, he writes; even “in evaluating whether a homicide violates Common Article 3, it would be necessary to consider the circumstances surrounding the act.” The CIA interrogation program fully complies with Common Article 3, various statutes and Supreme Court decisions, and the Bill of Rights, Benczkowski asserts. [US Department of Justice, 9/27/2007 ]

In his testimony to the Senate Judiciary Committee, Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), says that he believes President Bush sent White House aides Alberto Gonzales and Andrew Card to pressure then-Attorney General John Ashcroft to reauthorize the NSA’s warrantless wiretapping program while Ashcroft was recuperating from surgery (see March 10-12, 2004). When asked whom he believed had sent Gonzales and Card to the hospital, Goldsmith says he “recall[s] it was the President.” [ABC News, 10/2/2007]

Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), testifies before the Senate Judiciary Committee about his former department’s involvement in approving the NSA’s warrantless wiretapping program (see Early 2002). [Washington Post, 10/20/2007] There were aspects of the Terrorist Surveillance Program “that I could not find the legal support for,” he says, but because the program is classified, he refuses to give specific details about which aspects violate the law. Goldsmith says he assumes the White House does not want the legality of the program scrutinized, and therefore, “the extreme secrecy—not getting feedback from experts, not showing it to experts—led to a lot of mistakes.” [Associated Press, 10/2/2007]Testimony About Hospital Visit - Goldsmith testifies about the failed attempt by then-White House counsel Alberto Gonzales and then-White House chief of staff Andrew Card to pressure then-Attorney General John Ashcroft to declare the program legal over the objections of Goldsmith and Ashcroft’s deputy, James Comey (see March 10-12, 2004). Goldsmith, who accompanied Comey to Ashcroft’s hospital room to counter Gonzales and Card, calls their visit “inappropriate and baffling,” and testifies that Ashcroft “didn’t appreciate being visited in the hospital under these circumstances.” Goldsmith’s testimony further refutes the previous testimony of Gonzales, who insisted that there had been little or no dissension within the department over the wiretapping program (see July 24, 2007). Goldsmith tells the committee, “There were enormous disagreements” about the program, though Gonzales’s explanations could be construed as technically accurate given the varying terminology used for the program. [Washington Post, 10/20/2007] Goldsmith adds that Comey’s account of the events of that visit is accurate, becoming another former administration official to contradict Gonzales’s own testimony about the incident. Goldsmith also contradicts Gonzales’ insistence that there was very little real dissension among Justice Department and White House officials over the legality of the NSA wiretapping program. [Associated Press, 10/2/2007]Bush Sent Gonzales, Card to Pressure Ashcroft - Goldsmith also testifies that President Bush personally dispatched Gonzales and Card to Ashcroft’s hospital room (see October 2, 2007).

The New York Times reveals that the Justice Department issued two secret rulings authorizing far more extensive use of torture and abuse during the interrogation of terror suspects than has previously been acknowledged by the White House (see February 2005 and Late 2005). The White House’s deputy press secretary, Tony Fratto, makes the same counterclaim that Bush officials have made for years, saying, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within US law” and international agreements. But that claim is countered by the statements of over two dozen current and former officials involved in counterterrorism. When Attorney General Alberto Gonzales resigned in September after accusations of misleading Congress and the public on a wide array of issues, he said in his farewell speech that the Justice Department is a “place of inspiration” that had balanced the necessary flexibility to pursue the administration’s war on terrorism with the need to uphold the law and respect civil liberties (see July 25, 2007). But many of Gonzales’s associates at the Justice Department now say that Gonzales was usually compliant with the wishes of Vice President Cheney and Cheney’s chief counsel and adviser, David Addington, to endorse whatever interrogation policies the White House wished in the name of protecting the nation, no matter what conflicts may arise with US and international law or whatever criticisms from other governments, Congressional Democrats, or human rights groups may ensue. Critics, including many of the officials now speaking out, say that Gonzales turned the Justice Department from the independent law enforcement arm of the US government into just another arm of the White House. [New York Times, 10/4/2007]

The White House denies reports that a secret Justice Department opinion in 2005 authorized the use of torture against detainees suspected of terrorist connections, or superseded US anti-torture laws (see February 2005). Press secretary Dana Perino tells reporters: “This country does not torture. It is a policy of the United States that we do not torture and we do not.” The existence of the 2005 memo, signed by then-Attorney General Alberto Gonzales, was revealed by the New York Times. It apparently superseded a late 2004 memo that characterized torture as “abhorrent” and limited the use of “harsh interrogation techniques” (see December 30, 2004). Perino confirms the existence of the 2005 memo, but will not comment on what techniques it authorized. She merely says that the memo did not reinterpret the law. Justice Department spokesman Brian Roehrkasse says the 2004 opinion remains in effect and that “neither Attorney General Gonzales nor anyone else within the department modified or withdrew that opinion. Accordingly, any advice that the department would have provided in this area would rely upon, and be fully consistent with, the legal standards articulated in the December 2004 memorandum.” Senator John McCain (R-AZ), a consistent opponent of torture, says he was “personally assured by administration officials that at least one of the techniques allegedly used in the past, waterboarding, was prohibited under the new law.” The American Civil Liberties Union (ACLU) calls the 2005 memo and other Justice Department memos authorizing torture “cynical attempt[s] to shield interrogators from criminal liability and to perpetuate the administration’s unlawful interrogation practices.” House Democrats want Steven Bradbury, the acting head of the Justice Department’s Office of Legal Counsel (OLC), to “be made available for prompt committee hearings.” Senator Barack Obama (D-IL), a presidential candidate, says: “The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security. We must do whatever it takes to track down and capture or kill terrorists, but torture is not a part of the answer—it is a fundamental part of the problem with this administration’s approach.” Perino does not comment on another secret memo that apparently concluded all of the CIA’s torture methodologies were legal (see Late 2005). [Associated Press, 10/4/2007]

In light of new disclosures that the Justice Department endorsed torture in 2005 (see October 4, 2007), President Bush says the CIA broke no laws in its interrogations of prisoners, and reiterates his oft-stated assertion that the US “does not torture people.” In a brief appearance at the White House, Bush says, “We stick to US law and our international obligations.” But when the US finds a terrorism suspect: “You bet we’re going to detain them, and you bet we’re going to question them—because the American people expect us to find out information, actionable intelligence so we can help protect them. That’s our job.” Senator John D. Rockefeller (D-WV), the chairman of the Senate Intelligence Committee, says in response: “The administration can’t have it both ways. I’m tired of these games. They can’t say that Congress has been fully briefed while refusing to turn over key documents used to justify the legality of the program.” Rockefeller is referring to attempts by the White House and its defenders to assert that Congress knew as much about the CIA’s torture policies as did the White House, and its simultaneous refusal to turn over to Congress Justice Department and other documents used in the Bush administration’s assertions of legality. [Los Angeles Times, 10/6/2007]

In a setback for the Justice Department, a mistrial is declared in the government’s attempted prosecution of the Holy Land Foundation for Relief and Development (see 1989), a now-defunct Muslim charity that the government accused of sponsoring terrorism back in 2001. The mistrial was not the first verdict sent down; the judge originally announced a near-complete acquittal of Holy Land’s top officials on terrorist financing charges. However, three jurors stated in court that the verdict was incorrect, the judge sent the jury back into chambers for further deliberations. A mistrial of four Holy Land officials is declared after the jury declares itself locked, and a fifth official is declared innocent of all but one charge, where the jury again finds itself unable to render a verdict. The mistrials and acquittals are a blow to the Justice Department and the White House, both of which have billed the prosecution of Holy Land as the best efforts in years to secure a clear victory against terrorism. “It’s a major loss for the government,” says law professor Jonathan Turley, who has himself represented alleged terrorist financiers against the Justice Department. The case was never as solid as it was presented by government officials. In 2001, after Holy Land was declared a terrorist sponsor by the Bush administration and its funds were frozen (see February 19, 2000 and December 4, 2001), civil libertarians called the government’s definition of sponsorship of terrorism overly broad, and Holy Land fought back in court. In 2004, the government indicted Holy Land and its top leaders, leveling accusations that the charity and its officials had funnelled $12 million to the terrorist group Hamas through secondary charities (see October 1994-2001, May 12, 2000-December 9, 2004 and December 18, 2002-April 2005). A summary of wiretapped conversations between charity officials contained inflammatory anti-Semitic statements, which bolstered the government’s case in the public eye, but when the actual transcripts were examined, no such anti-Semitic statements could be found. And the government’s strategy of adding a long list of “unindicted co-conspirators” to its allegations against Holy Land, a list which includes many prominent Muslim organizations still legally operating inside the US, has caused many to accuse the government of conducting a smear campaign (see December 3-14, 2001 and August 21, 2004). While the Justice Department may well retry the case, the verdict, which seems to favor the defendants, “doesn’t bode well for the government’s prosecution” of this and other similar cases, says export controls lawyer Judith Lee. [US News and World Report, 10/22/2007]

A federal appeals court hears the case of alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri, who was the victor in a recent court decision that ruled he could no longer be held in military detention with no access to the US court system (see June 11, 2007). Al-Marri’s lawyer, Jonathan Hafetz, asks the Fourth US Court of Appeals to uphold the recent verdict, which was rendered by a three-judge panel from the same court. Now the entire court is reconsidering the case at the government’s request. Hafetz says the court must uphold the decision. “To rule otherwise is to sanction a power the president has never had and was never meant to have.” Authorization for the Use of Military Force - Judge Paul Neimeyer, a George H. W. Bush appointee, challenges Hafetz’s assertion that al-Marri cannot be held in military custody because he was not captured on a battlefield; to make such a claim would mean “25 or 30 terrorists could sneak into the US” and the military could not stop them. Justice Department lawyer Gregory Garre makes the same argument that the appeals court panel rejected—that Congress gave the president the authority to seize and detain anyone affiliated with al-Qaeda, regardless of where they were captured, when it passed its Authorization for the Use of Military Force (AUMF) after the 9/11 attacks (see September 14-18, 2001). Judge J. Harvie Wilkinson, appointed to the bench by former president Ronald Reagan, says that Congress could appeal or revise the AUMF whenever it likes. [Associated Press, 10/31/2007] Wilkinson acknowledges that many have concerns that the AUMF “may have authorized some sweeping detention problem… [, b]ut people are not being swept off the streets of Omaha.” Judge Diana Gribbon Motz interjects, “No, it was Peoria.” Question of Constitutionality - Wilkinson wonders why the “carefully targeted response by the government” has created “all this hoopla?” Comparing the detention of al-Marri and another enemy combatants, Jose Padilla, to the round-ups of German-Americans during World War I and of Japanese-Americans during World War II, Wilkinson asks if “we’ve lost our sense of perspective.” Judge Roger Gregory says: “The calculus for determining constitutionality is not whether we have a good king or a bad king. It’s not whether he stays his hand in generosity.” Motz and Gregory were the majority judges in the June decision. When Garre argues that al-Marri had ample opportunity to challenge his detention, and “squandered” those opportunities, Judge William Traxler asks, “How does a person who’s held incommunicado challenge” his detention? [Baltimore Daily Record, 11/1/2007]

Richard Convertino. [Source: Associated Press]Richard Convertino is acquitted by a Detroit federal court jury of subverting justice in a 2003 trial (see June 2003-August 2004). Convertino had been accused of withholding photographs from defense attorneys that might have undermined their 2003 prosecution and convictions of four alleged al-Qaeda-linked terrorists in Detroit. In 2003, defense attorneys wanted photos of a Jordanian hospital, hoping the photos would not match a crude drawing Convertino argued was a terrorist planning sketch. Convertino said there were none, and claims he never saw them, but photos of the hospital were later found. [Detroit Free Press, 11/1/2007] However, a later FBI analysis determined the sketch did closely match the photos after all, so the photos would have actually strengthened Convertino’s case, not weakened it. The guilty verdicts against three of the four men - Abdel-Ilah Elmardoudi, Karim Koubriti, and Ahmed Hannan - were later overturned, in large part due to the dispute over the photos (see June 2003-August 2004). The Associated Press will later comment that evidence that the sketch and photos did match “renews questions about whether the government correctly arrested the four men as a terrorist cell…” [Associated Press, 4/21/2006] Convertino alleges the charges against him were politically motivated to punish him for complaining before Congress about a lack of resources in the trial. He has filed a whistleblower lawsuit against the Justice Department. [Detroit Free Press, 11/1/2007] A judge dismisses one remaining charge against Convertino a month later. [Associated Press, 12/12/2007] It appears the Justice Department also battled with Convertino and his prosecution team and prevented him from using evidence that could have strengthened his case (see Early 2003).

Michael Mukasey. [Source: US Department of Justice]After two months of controversy, and a round of sporadically contentious Senate confirmation hearings, former judge Michael Mukasey narrowly wins the Senate’s approval to become the next attorney general, by an almost-party line 53-40 vote. Musakey replaces Alberto Gonzales, who resigned under fire in September 2007. Many Democrats vote against Mukasey because of his refusal to categorize the interrogation technique of waterboarding as torture, and his refusal to say that he would oppose President Bush’s insistence on eavesdropping on US citizens. Some Democrats took comfort in Mukasey’s characterization of waterboarding as “repugnant,” but others were not pleased by his refusal to say that the practice constitutes torture. Two key Democrats on the Senate Judiciary Committee, Charles Schumer (D-NY) and Dianne Feinstein (D-CA) refused to block Mukasey from going to the Senate for a confirmation vote. Both indicated that they reluctantly supported Mukasey’s nomination because the Justice Department needs an immediate infusion of leadership—Schumer called the department “adrift and rudderless” and in need of “a strong and independent leader”—and they feared if Mukasey was not confirmed, President Bush would put someone worse in the position as an interim appointment. [CNN, 11/8/2007] Schumer says he eventually decided to vote for Mukasey after the judge said “if Congress passed further legislation in this area, the president would have no legal authority to ignore it and Judge Mukasey would enforce it.” But Schumer’s colleague, Ted Kennedy (D-MA), is unimpressed. “Enforcing the law is the job of the attorney general,” Kennedy says. “It’s a prerequisite—not a virtue that enhances a nominee’s qualifications.” Ben Cardin (D-MD) wonders just how far, and how specifically, Congress will have to go to outlaw torture. He asks, “Are we going to have to outlaw the rack because there’s a question whether the rack is torture in this country?” [National Public Radio, 11/7/2007] Arlen Specter (R-PA), the committee’s ranking Republican, calls Mukasey “ethical, honest [and] not an intimate of the president.” [CNN, 11/8/2007] Mukasey is quietly sworn in only hours after winning the Senate vote. [National Public Radio, 11/9/2007] All four Democratic senators running for president—Hillary Clinton (D-NY), Barack Obama (D-IL), Joseph Biden (D-DE), and Christopher Dodd (D-CT)—have said they oppose Mukasey’s nomination. Obama calls Mukasey’s refusal to label waterboarding as torture “appalling,” and notes that Mukasey’s belief that the president “enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security” disqualify him for the position. The other candidates make similar statements. [Fox News, 10/30/2007] However, none of them actually show up to cast their vote for or against Mukasey. John McCain (R-AZ), another senator running for president, also does not vote. [Associated Press, 11/8/2007] Three days after Mukasey’s confirmation, the New York Times writes a blistering editorial excoriating both the Bush administration and the compliant Senate Democrats for allowing Mukasey to become attorney general (see November 11, 2007).

A federal appellate court bars an Islamic charity accused of assisting terrorists from using a US government document to prove that it had been illegally spied upon (see February 28, 2006). The charity, the now-defunct Al Haramain Islamic Foundation (see Late May, 2004), has been accused by the government and the UN Security Council of being affiliated with al-Qaeda; the charity’s officials deny the charges. In its finding, the three-judge panel rules in favor of the government’s argument that protecting “state secrets” (see March 9, 1953) is of overriding importance in the case. Other courts have ruled that the Bush administration can refuse to disclose information if “there is a reasonable danger” it would affect national security. Al Haramain’s lawyers argued that the document is necessary to prove that it was illegally monitored. According to the ruling, the judges accept “the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena.” Reaction Divided - Opinion is divided on the ruling. Constitutional law professor Erwin Chemerinsky of Duke University says the court’s deference to the “executive branch in situations like this [is] very troubling.” Another constitutional law professor, Douglas Kmiec of Pepperdine, says “the opinion is consistent with” an earlier ruling that struck down a challenge to the government’s surveillance program filed by the American Civil Liberties Union; Kmiec says the rulings indicate that “federal courts recognize that the essential aspects of the Terrorist Surveillance Program both remain secret and are important to preserve as such.” Mixed Results - The appellate court does not give the government everything it asked for. It rejects the Justice Department’s argument that “the very subject matter of the litigation is a state secret.” That finding may prove important in the other surveillance cases where the government is arguing that even to consider legal challenges to warrantless wiretapping endangers national security. The appeals court sends the case back to a lower court to consider whether or not the Foreign Intelligence Surveillance Act, which requires approval by a special court for domestic surveillance, preempts the state secrets privilege. The court also severs the Al Haramain case from other, similar lawsuits challenging the government’s secret surveillance program. [Los Angeles Times, 11/17/2007]

Several inquiries are launched into the destruction by the CIA of videotapes showing detainee interrogations. The Justice Department begins a preliminary inquiry. It writes to the CIA’s top lawyer, John Rizzo, noting he has undertaken to ensure all currently existing records are preserved. [Associated Press, 12/8/2007] The CIA’s Inspector General begins an inquiry. One of the questions it will address is whether the destruction was obstruction of justice. [Associated Press, 12/11/2007] However, some Democratic lawmakers raise questions about the propriety of inquiries run by the Justice Department, as its lawyers offered advice about the tapes, and the CIA Inspector General, who reviewed the tapes before they were destroyed. [Washington Post, 12/15/2007] The House Intelligence Committee starts an inquiry. Committee chairman Silvestre Reyes says it is planning a “broad review” of the CIA’s detention and interrogation program, but adds, “I’m not looking for scapegoats.” [International Herald Tribune, 12/8/2007] The committee requests all cables, memos and e-mails related to the videotapes, as well as legal advice given to CIA officials before the tapes were destroyed. [New York Times, 12/15/2007] The Senate Intelligence Committee also begins an inquiry. [FindLaw, 12/14/2007] The House Judiciary Committee sends letters to CIA Director Michael Hayden and Attorney General Michael Mukasey asking whether the Justice Department provided the CIA with legal advice. [Associated Press, 12/7/2007] The House Committee on Oversight and Government Reform investigates whether the Federal Records Act has been violated. [FindLaw, 12/14/2007] There is a debate in a court case involving 11 Guantanamo detainees about whether the tapes were subject to a preservation order issued by the judge in that case (see December 14, 2007).

Former CIA officer John Kiriakou, who has recently admitted that the agency waterboarded militant training camp facilitator Abu Zubaida (see December 10, 2007), gives another interview about the issue, this time to MSNBC “Today Show” host Matt Lauer. Kiriakou again repeats his talking points: the CIA waterboarded Abu Zubaida, the use of this and other enhanced techniques was controlled by bureaucratic procedure, it led to intelligence, but it is torture. However, when Lauer asks whether the White House was involved in the decision, Kiriakou answers: “Absolutely.… This was a policy decision that was made at the White House with concurrence from the National Security Council and Justice Department.” Lauer plays a clip of an interview he did with President Bush over a year ago in which Bush said, “I told our people get information without torture and was assured by our Justice Department that we were not torturing.” Kiriakou responds to it, saying: “I disagree. I know that there was a high level policy debate on whether or not this was torture and that the Department of Justice and the White House counsel and the National Security Council decided that it was not, at the time.” [MSNBC, 12/11/2007] The CIA decides not to refer Kiriakou to the Justice Department for a leak investigation over his original interview at this time (see December 11, 2007). However, according to Harper’s magazine columnist Scott Horton, officials at the Justice Department and the National Security Council are “furious” that Kiriakou has mentioned their role in the waterboarding, and insist that he be investigated (see December 20, 2007). [Harpers, 12/21/2007]

After it is revealed that the CIA has destroyed tapes showing detainee interrogations (see November 2005), congressional leaders Patrick Leahy (D-VT) and Arlen Specter (R-PA) ask Attorney General Michael Mukasey for “a complete account of the Justice Department’s own knowledge of and involvement with” the tape destruction. News reports indicate the Justice Department did advise the CIA not to destroy the tapes as far back as 2003 (see 2003). The Justice Department is also asked whether it offered legal advice to the CIA or communicated with the White House about the issue. However, Mukasey refuses to answer any of the questions, replying that the Justice Department “has a long-standing policy of declining to provide non-public information about pending matters. This policy is based in part on our interest in avoiding any perception that our law enforcement decisions are subject to political influence.” [Washington Post, 12/15/2007] According to the New York Times, Justice Department officials describe this and another rebuff to congress (see December 14, 2007) as “an effort to caution Congress against meddling in the tapes case and other politically explosive criminal cases.” [New York Times, 12/15/2007]

The Justice Department urges a federal judge not to begin an inquiry into the destruction of CIA videotapes in a case involving 11 Guantanamo Bay detainees. The judge in the case, Henry Kennedy, had previously issued a ruling that evidence related to the detainees should be preserved (see June-July 2005). After attorneys for the detainees file a motion saying the CIA’s destruction of the tapes “raises grave concerns about the government’s compliance with the preservation order entered by this court,” the administration argues it was not under an obligation to preserve the videotapes and tells US District Judge Kennedy that asking for information about the tapes’ destruction could “potentially complicate” a Justice Department inquiry into it. The Justice Department also says the judge lacks jurisdiction and is worried he will compel CIA officers to testify. In addition, the destroyed tapes were made outside Guantanamo, whereas the order previously issued by the judge only directly affected material in Guantanamo. However, evidence from “a senior al-Qaeda lieutenant” is being used against one of the detainees, and this lieutenant may have been shown on the destroyed tapes, making them relevant to the case. The Associated Press calls the Justice Department’s request “unusual,” and law professor Douglas Kmiec comments, “It’s hard to know on the surface whether this is obstruction or an advancement of a legitimate inquiry.” [New York Times, 12/11/2007; Associated Press, 12/15/2007] Another law professor, Jonathon Turley, comments: “The Justice Department insists it will essentially investigate itself and then tells the court that because it is investigating itself it won’t turn over evidence of its possible criminal misconduct. It’s so circular, it’s maddening.” [ABC News, 12/15/2007] In early January 2008, Kennedy will decline to hold a hearing into the destruction, saying that the destroyed tapes were not directly related to this case, as they were not made in Guantanamo. He is also “influenced by the assurances of the Department of Justice” that its criminal investigation will cover the issue of whether the tapes’ destruction “was inconsistent with or violated any legal obligations.” [New York Times, 1/10/2008]

Kenneth Wainstein. [Source: White House]The Justice Department attempts to delay probes by the House and Senate Intelligence Committees into the destruction of CIA tapes showing detainee interrogations, saying the administration cannot provide the witnesses or documents the committees want, as this may jeopardize its own investigations. Kenneth Wainstein, assistant attorney general for national security, and CIA Inspector General John Helgerson write to congressional intelligence committee leaders saying, “We fully appreciate the committee’s oversight interest in this matter, but want to advise you of concerns that actions responsive to your request would represent significant risk to our preliminary inquiry.” However, Wainstein and Helgerson are unable to say when they will have results. Attorney General Michael Mukasey also rejects a request for details about the Justice Department-CIA inquiry (see December 14, 2007). [Washington Post, 12/15/2007; New York Times, 12/15/2007] House Intelligence Committee Chairman Silvestre Reyes (D-TX) and Vice Chairman Peter Hoekstra (R-MI) threaten to issue subpoenas and respond in a joint statement: “We are stunned that the Justice Department would move to block our investigation… Parallel investigations occur all of the time, and there is no basis upon which the Attorney General can stand in the way of our work.” [Washington Post, 12/15/2007] They add: “It’s clear that there’s more to this story than we have been told, and it is unfortunate that we are being prevented from learning the facts. The executive branch can’t be trusted to oversee itself.” [Associated Press, 12/15/2007] The New York Times comments, “The inquiry by the House committee had been shaping up as the most aggressive investigation into the destruction of the tapes.” The intelligence committee inquiries are similar to those of the Justice Department and CIA Inspector General, but also aim to determine whether anyone in the executive branch had sought to have the tapes destroyed to eliminate possible evidence that CIA officers had used banned interrogation techniques. [New York Times, 12/15/2007] A CIA spokesman says, “Director Hayden has said the Agency will cooperate fully with both the preliminary inquiry conducted by [Justice Department] and CIA’s Office of Inspector General, and with the Congress. That has been, and certainly still is, the case.” [Washington Post, 12/15/2007] However, the CIA fails to provide documents the House committee has requested. [New York Times, 12/15/2007] Commentator Scott Horton will call this “a conscious decision to shield criminal conduct from exposure before the watchdog appointed by the Constitution: Congress.” [Harpers, 12/15/2007]

Senator Ron Wyden (D-OR) replies to a letter from the Justice Department that claims the CIA’s detainee interrogation program is fully compliant with the Geneva Conventions and with US and international law (see September 27, 2007). Wyden challenges the legal rationale for the claims, noting that the cases cited do not directly apply to the question of whether the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” can vary depending on the identity of the detainee and the circumstances surrounding his interrogation. He also challenges the Justice Department’s rather narrow interpretation of the protections afforded by the Eighth Amendment and the Detainee Treatment Act (see December 30, 2005). [US Senate, 3/6/2008 ]

The CIA refers the case of John Kiriakou, a former officer who has recently admitted the agency waterboarded militant training camp facilitator Abu Zubaida (see December 10, 2007), to the Justice Department for investigation. The department is to investigate whether Kiriakou committed a criminal offence by illegally disclosing classified information in the interviews he gave about Zubaida’s treatment. [McClatchy, 12/20/2007] The CIA originally decided not to refer the case (see December 11, 2007), but pressure was applied by the Justice Department and National Security Council after Kiriakou revealed its involvement in a later interview (see December 11, 2007).

The Justice Department’s National Security Division and the CIA’s inspector general conclude their preliminary inquiry into the destruction of CIA videotapes showing the interrogation of detainees Abu Zubaida and Abd al-Rahim al-Nashiri (see December 7, 2007 and Shortly After). They report that there is enough evidence to start a criminal investigation, but do not say for certain that a crime has been committed. [Salon, 1/2/2008] A prosecutor is appointed to head the investigation (see January 2, 2008).

John Durham. [Source: Bob Child / Associated Press]After the Justice Department and CIA Inspector General conclude there should be a criminal probe into the destruction of videotapes showing interrogations of two detainees, Abu Zubaida and Abd al-Rahim al-Nashiri (see January 2, 2008), Attorney General Michael Mukasey appoints John Durham, a federal prosecutor from Connecticut, to oversee the case. The investigation would usually be handled by the prosecutor’s office in the Eastern District of Virginia, but that office is recused to avoid the appearance of a conflict of interests. Durham will not act as an independent special prosecutor like Patrick Fitzgerald in the Valerie Plame Wilson case, but will report to the Deputy Attorney General. [Salon, 1/2/2008] Durham made his name as a prosecutor in a difficult organized crime case in Boston. [New York Times, 1/13/2008] House Judiciary Committee Chairman John Conyers (D-MI) criticizes the appointment, saying, “it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter… The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness.” [Salon, 1/2/2008]

Convicted terrorism conspirator Jose Padilla (see January 22, 2008) sues former Justice Department lawyer John Yoo. Padilla claims Yoo’s legal arguments led to his mistreatment and illegal detention at a US Navy brig. Padilla’s lawsuit says that Yoo’s memos led President Bush to designate Padilla as an “enemy combatant” (see June 10, 2002) and subject him to indefinite detention without being charged or having access to a lawyer. The lawsuit asks for only $1 in damages, and seeks a legal judgment declaring that the policies violated the US Constitution. “This is ultimately about right and wrong, not money,” says Padilla’s attorney Jonathan Freiman, a law professor at Yale University. Freiman says Yoo is being sued because “he gave the green light” to how to deal with Padilla. The lawsuit reiterates claims that Padilla was subjected to harsh interrogation techiques and mistreatment that amounted to torture, claims Justice Department and Pentagon officials deny. [Associated Press, 1/4/2008]

An internal FBI audit reveals that US telecommunications companies have repeatedly terminated FBI access to wiretaps of suspected terrorists and other criminal suspects because bureau officials failed to pay outstanding phone bills. The report, written by Justice Department Inspector General Glenn Fine, finds that over half of the nearly 1,000 telecommunications bills reviewed by investigators were not paid on time. One unidentified field office allowed a $66,000 invoice to go unpaid. In another instance, a wiretap conducted under a FISA warrant was terminated because of “untimely payment.” The report notes, “Late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance results to the FBI, resulting in lost evidence.” [Washington Post, 1/11/2008] Some of the problems stem from telecoms billing multiple times for single surveillance warrants, which ratchets up the bills quickly. Cox Communications, for example, billed the FBI $1,500 for a single, 30-day wiretap order. Telecoms also bill the FBI for Internet connections and phone lines connecting the carrier’s wiretap-ready switches with the FBI’s own wiretap software system, known as the Digital Collection System. Each field office’s computers are connected together with the other offices, and with FBI headquarters, through a secure fiber optic network managed by Sprint. In some cases, FBI officials were confused about whether to use confidential case funds or general funds to pay the telecom bills. Sometimes they were so confused that when the telecoms sent refunds, the officials returned the refunds to the carriers. [Wired News, 1/10/2008] The report faults the agency for poor handling of money used in undercover investigations, which it says makes the agency vulnerable to theft and mishandled invoices. [Reuters, 1/10/2008] This is the latest in a string of audits by Fine’s office that has found serious financial and management problems at the bureau. FBI spokesman Richard Kolko says that in every case the outstanding bills were eventually paid and the intercepted information was recovered. “No evidence was lost in these cases,” he says. FBI assistant director John Miller blames an “inadequate” financial management system for the failures to pay telecom bills. Previous reports have noted a persistent failure to account for hundreds of computers and weapons, and a pattern of careless bookkeeping that spans a much wider area than the wiretapping program. The audit itself, a detailed, 87-page document, is too sensitive for public release, says the Justice Department, and only a seven-page summary is released. The American Civil Liberties Union calls on the FBI to release the entire document. ACLU counsel Michael German, himself a former FBI agent, questions the motives of the telecom firms, who in many instances have allowed the government to operate wiretaps on their systems without court warrants. “It sounds as though the telecoms believe it when the FBI says the warrant is in the mail, but not when they say the check is in the mail,” he says. [Washington Post, 1/11/2008]

Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel (OLC), tells the House Judiciary Committee that the Bush administration routinely allowed the CIA to use interrogation tactics that were “quite distressing, uncomfortable, even frightening,” as long as they did not cause enough severe and lasting pain to constitute illegal torture. One of those techniques, waterboarding, is legal and not torture, Bradbury says, because it is a “procedure subject to strict limitations and safeguards.” Those standards and limitations make waterboarding as used by the CIA substantially different from historical uses of the technique as it was employed during the Spanish Inquisition and by the Japanese during World War II. Bradbury, asked if waterboarding violates US and international laws against torture, says it does not. Waterboarding as practiced by the CIA bears “no resemblance” to what torturers in time past have done. “There’s been a lot of discussion in the public about historical uses of waterboarding,” Bradbury says. The “only thing in common is the use of water.” Spanish and Japanese water torture techniques “involved the forced consumption of a mass amount of water.” When asked if he is aware of any “modern use” of waterboarding that involves the “lungs filling with water,” Bradbury says he is not. Bradbury says that the Japanese forced the ingestion of so much water that it was “beyond the capacity of the victim’s stomach.” Weight or pressure was then applied by standing or jumping on the stomach of the victim, sometimes leading to “blood coming of the victim’s mouth.” The Spanish Inquisition would use the technique to the point of “agony or death.” The CIA does not do that, Bradbury says. “Strict time limits” are involved—presumably governing the length of time that interrogators can induce the sensation of drowning. Additionally, “safeguards” and “restrictions” make waterboarding a much more controlled procedure. Together, waterboarding as practiced by the CIA is not torture. However, Bradbury admits that recent Supreme Court decisions have changed the OLC’s analysis, and says that in 2006 the CIA stopped using waterboarding. [TPM Muckraker, 2/14/2008; Washington Post, 2/18/2008]Bradbury's Comparison 'Obscene' - Bradbury claimed that no water entered the lungs of three al-Qaeda captives subjected to the practice; many believe that those captives had cellophane or cloth over their noses and mouths while waterboarded. Torture experts say that practice poses a serious risk of asphyxiation. Former OLC official Martin Lederman says he finds Bradbury’s testimony “chilling.” Lederman notes that “to say that this is not severe physical suffering—is not torture—is absurd. And to invoke the defense that what the Spanish Inquisition did was worse and that we use a more benign, non-torture form of waterboarding… is obscene.” Human rights experts have said that the CIA’s particular form of waterboarding is similar to those practiced by such regimes as the Khmer Rouge in Cambodia, the French colonial government in Algeria, and the government of Myanmar (Burma). All three of those regimes have been criticized for brutality and flagrant human rights violations. [Washington Post, 2/18/2008]

The House of Representatives votes to hold White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers in contempt of Congress. Bolten and Miers have refused to testify to a House committee investigating the firing of several US attorneys. Many House Republicans walk off the House floor before the vote is cast, ostensibly because they want to work on reauthorizing the Protect America Act (see August 5, 2007) rather than deal with the contempt citation. Minority Leader John Boehner complains, “We have space on the calendar today for a politically charged fishing expedition, but no space for a bill that would protect the American people from terrorists who want to kill us.” [Associated Press, 2/14/2008] “We will not stand for this, and we will not stay for this. And I would ask my House Republican colleagues and those who believe we should be protecting the American people, to not vote on this bill. Let’s just get up and leave.” [Think Progress, 2/14/2008] (Before they walk out, Lincoln Diaz-Balart (R-FL) attempts to disrupt the memorial service for the recently deceased Tom Lantos (D-CA), taking place in Statuary Hall just a few steps from the House chambers, by calling for a procedural vote during the memorial service. An MSNBC reporter says Diaz-Balart’s action is apparently the result of “pique.”) [MSNBC, 2/14/2008] The contempt citation will be forwarded to the US Attorney for the District of Columbia. The two resolutions passed hold Bolten and Miers in contempt, and allow for the House to file a civil suit against the Bush administration to compel the aides’ testimony. “I hope this administration will realize this Congress is serious about its constitutional role of oversight,” says House Speaker Nancy Pelosi (D-CA). Pelosi says she “had hoped that this day would never have come,” and adds that if the White House instructs Justice Department attorneys not to prosecute the contempt citations, “we will have power to go to federal court and seek civil enforcement of our subpoenas.” [The Hill, 2/14/2008; Associated Press, 2/14/2008]White House Conditions 'Beyond Arrogance' - The White House has already said it will not allow the Justice Department to pursue the contempt charges, claiming that the information is off-limits because of executive privilege, and that Bolten and Miers are immune from prosecution. House Democrats such as Judiciary Committee chairman John Conyers (D-MI) had tried for months to work with the White House to win its approval for the aides’ testimony, but were unwilling to accept the White House’s restrictive conditions—investigators would not have been allowed to make transcripts of the testimony, to copy documents presented in the testimony, or to seek any more information after the single session. Pelosi said of the White House’s conditions, “This is beyond arrogance. It’s hubris taken to the ultimate degree.” Republicans Say Testimony Would 'Undermine' Power of Executive Branch - Republicans such as David Dreier (R-CA) warn that such a case might “undermine the power of the first [executive] branch of government.” [The Hill, 2/14/2008; Associated Press, 2/14/2008]Miller: Bush Attempting to 'Decide by Decree' - Representative Brad Miller (D-NC) says during the deliberations, “The president cannot decide by decree. The president cannot announce with absolute unreviewable authority what information the administration will provide or withhold. The framers of our Constitution had just fought a war against an autocratic king. It is inconceivable that they intended to create an executive branch with the power the Bush administration now claims and that the minority now supports.” [Speaker of the House, 2/14/2008]

The Justice Department’s Inspector General, Glenn Fine, writes to Senators Richard Durbin (D-IL) and Sheldon Whitehouse (D-RI). Fine is responding to their request for an investigation of Justice Department officials’ role in authorizing and overseeing the use of waterboarding by CIA interrogators at the Guantanamo Bay detention facility. Fine notes: “[U]nder current law, the OIG [Office of the Inspector General] does not have jurisdiction to review the actions of [Justice Department] attorneys acting in their capacity to provide legal advice. Legislation that would remove this limitation has passed the House and is pending in the Senate (see April 23, 2008), but at this point the OIG does not have the jurisdiction to undertake the review you request.” [US Department of Justice, 2/19/2008 ]

The Bush administration says all major US telecommunications firms have agreed to cooperate “for the time being” with US intelligence agencies’ wiretapping, regardless of the recent expiration of the Protect America Act (PAA) (see February 16, 2008). According to a joint statement from the Justice Department and the Office of the Director of National Intelligence, wiretaps will resume under the current law “at least for now.” The statement says in part, “Although our private partners are cooperating for the time being, they have expressed understandable misgivings about doing so in light of the ongoing uncertainty and have indicated they may well discontinue cooperation if the uncertainty persists.” Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell said earlier that intelligence agencies have missed critical intelligence because of the expiration of the PAA, a claim they retracted hours later (see February 23, 2008). [Reuters, 2/23/2008]

Justice Department attorney Brian Benczkowski replies to a follow-up letter from Senator Ron Wyden (D-OR), who is challenging the department’s claims that the CIA detainee interrogation program is fully compliant with US and international law (see December 20, 2007). Much of Benczkowski’s letter is a reiteration of points made in an earlier letter (see September 27, 2007), even citing the same legal cases that Wyden challenged as not directly relevant to the Justice Department’s arguments. Benczkowski reiterates that the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” are flexible, in the department’s view, and can change drastically depending on the identity of the detainee and the circumstances surrounding his interrogation. The standards of compliance are also mitigated by the “nature and importance of the government interest,” he claims, giving as an example the possibility of abrogating a detainee’s fundamental rights under the Geneva Conventions and other statutes in order to force information about an impending terrorist attack from him. Benczkowski reiterates that the Eighth Amendment only applies to prisoners after they have been convicted of a crime; hence, detainees never tried or charged for crimes have no rights under that amendment. It is apparent that Benczkowski considers the discussion closed; he concludes his letter with the statement, “Please do not hesitate to contact the Department if we can be of assistance in other matters.” [US Department of Justice, 3/6/2008 ]

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